Malkowski v. Ontario (Municipal Affairs and Housing), 2009 HRTO 154

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Malkowski

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: February 12, 2009

Citation: 2009 HRTO 154

Indexed as: Malkowski v. Ontario (Municipal Affairs and Housing)

1This is an Application filed August 20, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint underlying the Application was filed with the Ontario Human Rights Commission on February 19, 2004.

2The respondent argues that the Tribunal does not have jurisdiction to deal with this Application because the complaint upon which the Application is based was dismissed by the Ontario Human Rights Commission (the “Commission”) on March 5, 2008 and therefore it is not a complaint which is “continued” under the transition provisions of the Code.

3This decision is based upon the written submissions filed by the parties.

Decision

Jurisdiction over this Application

Is this a “continued complaint”?

4The applicant self-identifies as a person who is deaf. The complaint filed with the Commission alleged that the named respondent had failed to provide equal treatment with respect to services good and facilitates during the 2003 mayoral election as required under the Municipal Elections Act, 1996, S.O. 1996, c. 32. On March 11, 2008, the Commission dismissed the complaint against the named respondent. The reasons are set out below:

a) The Commission is of the view that the complaint concerns allegations with respect to lack of access to the service of receiving the platform campaigns of various candidates during the October 2003 Mayoralty municipal election, such as TTY machines in candidate's offices and the use of sign language interpreters in debates and meetings, for persons with disabilities.

b) The evidence indicates that the respondent, Her Majesty the Queen in right of Ontario, is not responsible for providing these services. The services in question, if they are to be provided, should be provided by the Mayoralty candidates or their campaigns. As such, the complaint does not provide a link between the alleged action or inaction taken by the respondent and a social area under the Code.

c) The evidence further indicates that the respondent does not have the ability to provide the remedy which the complainant is seeking, essentially legislative amendments. The Divisional Court has held that the Human Rights Code cannot be relied upon to "read in" or add to legislation which may be perceived to be underinclusive.

d) The Commission is therefore of the view that the complaint fails to establish a reasonable basis upon which it can be maintained.

e) The Commission .is further of the view that, notwithstanding the fact that Commission staff may have advised the complainant to name Her Majesty the Queen in right of Ontario as the respondent, subsequent case law has made it clear that Her Majesty the Queen is not under an obligation to amend legislation and, as such, the complaint is not within the jurisdiction of the Commission.

f) The evidence indicates that while the Commission staff, as part of the Commission's power to control its own process, has advised the complainant that it is not prepared to permit an amendment to the complaint to add some of the Mayoralty candidates, the complainant was invited by the Commission to file a new or fresh complaint(s) relating to both the 2003 and 2006 elections, in order to name the appropriate respondents, however the complainant has chosen not to do so.

5Within the statutory time limit for filing a request for reconsideration, the applicant filed a request for reconsideration with respect to the Commission’s failure to add the mayoral candidates as respondents. He specifically stated that he did not disagree with the dismissal of the application as against the named respondent.

6Whatever disagreement the applicant had with the Commission’s failure to add the mayoral candidates to the underlying complaint, it is evident that he did not seek reconsideration of the decision to dismiss the complaint against the named respondent to the present Application.

7Accordingly, the complaint against the named respondent to this Application was finally determined by the Commission on March 11, 2008 and there was no “continued complaint” against the named respondent which could be abandoned and form the basis of a Section 53(3) Application.

8The relevant portions of section 53 of the Code provide:

(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. (emphasis added)

9For the foregoing reasons, I find that this Application is not within the Tribunal’s jurisdiction.

10As the mayoral candidates are not parties to the application, there is no basis upon which I can conclude that a “continued complaint” had been filed against them in the context of the instant Application.