Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 1427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vladimir Guilmoutdinov, Vladimir Kravtsov and Nadejda Ratchinskaia Complainants

-and-

Ontario Human Rights Commission Commission

-and-

Ontario College of Teachers Respondent

INTERIM DECISION

Adjudicator: Alan Whyte Date: September 9, 2009 Citation: 2009 HRTO 1427 Indexed as: Guilmoutdinov v. Ontario College of Teachers

1These Complaints under the Human Rights Code, R.S.O. 1990, c. H. 19 (“the Code”), were filed by Mr. Guilmoutdinov, Mr. Kravtsov and Ms. Ratchinskaia on May 28, 2004, June 9, 2004, and May 24, 2004, respectively. They allege discrimination on the basis of place of origin contrary to sections 1, 6 and 9 of the Code. The Complaints were referred by the Ontario Human Rights Commission (“the Commission”) to the Tribunal in February, 2008.

2The respondents brought a Request for an Order during Proceedings (“the Request”) on June 1, 2009, seeking to dismiss the Complaints based on s.34(11) of the Code, and also seeking the removal of the personal respondents. A hearing was held on August 31, 2009, to address the Request.

3There is a large number of hearing days scheduled for the hearing on the merits of this case in October, November and December, 2009. Accordingly, the Tribunal agreed to issue a “bottom line” decision by no later than September 14, 2009, in order that the parties would know whether the hearing on the merits would commence as scheduled. Full reasons will follow as soon as possible.

Decision

4The human rights system in Ontario was fundamentally re-designed in 2008 and the new Code came into effect on June 30, 2008. Included in that legislation were a number of transitional provisions which, among other things, affected Commission referred complaints which had been referred to the Tribunal before June 30, 2008, as in this case.

5The relevant provisions of the Code are sections 34(11), 35, 46.1 and 55. Section 55(2) states a Commission referred complaint is to be treated

…as though it were an application made to the Tribunal under that Part [Part IV of the Code] and the Tribunal shall deal with the complaint in accordance with the new Part IV.

6The interpretation of this section must take into account the two separate components of Complaints under the old Code. Under such Complaints, both the complainants and the Commission had separate interests as has been recognized by the Tribunal and Court jurisprudence.

7With respect to the individual interests of the complainants, it is clear that the complainants have commenced a civil action “seeking an order under section 46.1 with respect to the alleged infringement.” Consequently, I find their participation in this proceeding is barred by s.34(11) of the Code.

8With respect to the Commission, I am satisfied the nature of its involvement in this proceeding is best characterised as if it were an application made pursuant to s.35(1), which reads as follows:

The Commission may apply to the Tribunal for an order under section 45.3 if the Commission is of the opinion that,

(a) it is in the public interest to make an application; and

(b) an order under section 45.3 could provide an appropriate remedy.

An application made under s.35 is not barred by the provisions of s.34(11). As such the Commission may proceed with the complaints but may seek only the remedies available to it pursuant to s.45.3 of the Code.

9With respect to the respondents’ request for the removal of the personal respondents, in view of the Commission's consent to the removal of those respondents and the respondent’s stipulation that the College will assume liability for any Code violations found in relation to the personal respondents, it is appropriate to remove the personal respondents from the proceeding, and the style of cause is amended accordingly.

Directions

10The Tribunal therefore orders as follows:

(a) the individual complainants are barred from proceeding with their complaints by section 34(11) of the Code;

(b) the Commission may continue with the complaints which will proceed as though they were an application made under section 35 of the Code;

(c) the Commission may file an amended hearing brief within 14 days of the date of this Interim Decision;

(d) the respondent may file an amended hearing brief within 14 days of receipt of the Commission’s amended hearing brief;

(e) both parties shall file submissions as to whether or not, in light of this Interim Decision, this case should be deferred pending the outcome of the civil action, within 14 days of the date of this Interim Decision; and

(f) with respect to the remaining hearing days, subject to the parties’ position on deferral and any determination of that issue, the parties shall provide their submissions within 14 days of the date of this Interim Decision on the number of hearing days now required to hear and decide the issues in dispute between the Commission and the College. Please note the October 28, 2009 hearing date is cancelled.