HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaikhushroo Firozi

Applicant

-and-

Ontario Lottery and Gaming Corporation, Bob Stenton,

Donnel Asper and Lansha Leung

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 12, 2009

Citation: 2009 HRTO 155

Indexed as: Firozi v. Ontario (Lottery and Gaming Corporation)

Introduction

1This is an Application filed September 18, 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 underlying complaint was filed with the Ontario Human Rights Commission (“Commission”) on February 2, 2002 and abandoned upon the filing of the current application.

2The respondents argue 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 Commission on November 28, 2006 and the applicant did not file a timely request for reconsideration.

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

Decision

Is the request for reconsideration timely?

4The first question raised in determining the Tribunal’s jurisdiction to entertain this Application is whether the request for reconsideration made to the Commission was timely. Section 37 of the old Part IV of the Code provided that a request for reconsideration must be filed within 15 days of the mailing of the Commission decision, or “such longer period as the Commission for special reasons may allow.”

5The applicant argues that he filed a request for reconsideration to the Commission in December 2006, but the Commission apparently did not receive this request. When the applicant learned in August 2008 that the original request for reconsideration was not on file with the Commission, he filed a request for reconsideration on August 11, 2008 and a request for an extension to the statutory 15 day filing period.

6The Commission responded that its records showed that the request for reconsideration was received August 18, 2008, which was outside the statutory 15 day period for filing a request for reconsideration. The Commission further stated that the request for the extension would be placed before the Commission for a decision whether to extend the time for filing a request for reconsideration.

7Based on the documentation filed by the applicant it appears that the Commission had not made a decision on the request for an extension when the applicant purported to abandon his complaint at the Commission and file the present Application on September 18, 2008.

8Whatever attempts the applicant made to file the request for reconsideration in a timely manner, the evidence before me indicates that the Commission did not consider that it had received a request for reconsideration until August 2008. The Commission never acknowledged the first request for reconsideration allegedly filed in December 2006. It seems to me extraordinary that the applicant believed that his request for reconsideration was being processed, when he had never received an acknowledgement of his request for reconsideration. In any event, I find that the only request for reconsideration that was “filed” was the one received and acknowledged by the Commission on August 18, 2008. That request was untimely. Until and unless the Commission granted an extension to file the request for reconsideration outside the statutory deadline, the Commission had no authority to deal with the request for reconsideration. The Commission never granted the extension and therefore the complaint was not “continued” within the meaning of section 53 of the Code which provides:

(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).

9I find that this Application is not within the jurisdiction of the Tribunal.