Guarda v. Cadbury Adams Canada, 2009 HRTO 1420

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jorge Guarda

Applicant

-and-

Cadbury Adams Canada Inc., Heather Sheehan,

Ramdeen Naipul and Dean German

Respondents

-and-

United Food & Commercial Workers Canada, Locals 175 & 633

Intervenor

DECISION

Adjudicator: Kaye Joachim

Date: September 8, 2009

Citation: 2009 HRTO 1420

Indexed as: Guarda v. Cadbury Adams Canada

1This is an Application filed on December 29, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On July 7, 2006, the applicant filed a complaint (PRIS-6HRQC) with the Ontario Human Rights Commission (the “Commission”), alleging that he had been discriminated against in his employment on the basis of disability. More particularly, he alleged that he had not been assigned certain work because of a failure to accommodate a mental disability, with a resulting loss of pay.

3On September 7, 2006, the applicant filed a grievance (CE06-M0215) with his employer raising the treatment he received relating to his disability. On December 11, 2006, the applicant filed another grievance (CE07-M0005) relating to a job assignment alleging that he was not being paid the appropriate rate of pay.

4The parties, the intervenor and the Commission participated in mediation and signed Minutes of Settlement on June 6, 2007, resolving the two grievances.

5On January 14, 2008, the Commission advised the applicant that in its view, the subject-matter of the complaint had been resolved by the Minutes of Settlement and that complaint would be withdrawn upon receipt of a direction from the applicant.

6Rather than signing the withdrawal direction, the applicant abandoned the complaint and filed the present Application.

7As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before that date, individual complaints were only heard by the Tribunal if the Commission decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal.

8The transition provisions of the amended Code address the situation of applicants who had filed complaints with the Commission prior to the effective date of the new provisions, June 30, 2008.

9The following transition provisions are relevant to this Decision:

53. (1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

10Essentially, from the effective date (June 30, 2008) until the expiration of the six-month period (December 31, 2008), the Commission could continue to deal with a complaint filed prior to June 30, 2008. For example, the Commission could initiate an investigation, attempt to settle a complaint or refer a complaint to the Commissioners under section 34 or 36 of the old Code. A person who filed a complaint prior to June 30, 2008, that is continued at the Commission could choose to leave their complaint at the Commission until December 31, 2008, or elect to abandon their complaint and file a section 53(3) application with the Tribunal with respect to the subject-matter of the complaint.

11The issue in this case is whether the applicant had a continued complaint before the Commission in December 2008 when he filed the section 53(3) Application. In my view he did not.

12The parties settled the subject-matter of the complaint and outstanding grievances, although no release of the complaint was specifically requested or signed. The Commission was of the view that the subject matter of complaint PRIS-6HRQC had been resolved and “there is no basis for the complaint’s continuation.” In my view, this complaint was no longer continued at the Commission after the Commission’s January 2008 letter.

13Accordingly, the applicant may not file the present Application under section 53(3) and the Application is dismissed.