Latronico v. York Region District School Board, 2009 HRTO 1605

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincenzo Latronico

Applicant

-and-

York Region District School Board, Isagamni Paz, David Lutz and Dan Hunter

Respondents

AND B E T W E E N:

Vincenzo Latronico

Applicant

-and-

Canadian Union of Public Employees, Local 1196, John Botts, Debbie Carson, Mary Cromwell, Peter Watterson, Dan Morgan and Rene Bissonnette

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 6, 2009

Citation: 2009 HRTO 1605

Indexed as: Latronico v. York Region District School Board

1These Applications were received in May 2009. The respondents will be referred to as the Employer respondents and the Union respondents. All the respondents have asserted that the Applications are barred because they were not properly filed with the Tribunal by June 30, 2009.

The Legislation

2As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Ontario Human Rights Commission (the “Commission”) decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal. The Legislature made provision for complainants who had filed complaints with the Commission prior to June 30, 2008 to file transitional Applications with the Tribunal during the period June 30, 2008 to June 30, 2009.

3The transition provisions are set out in section 53:

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.

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

(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.

(6) The new Part IV applies to an application made under subsections (3) and (5) ….

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

4From June 30, 2008 until December 31, 2008, applicants could file section 53(3) applications and from January 1, 2009 to June 30, 2009, applicants could file section 53(5) applications with respect to “continued” complaints. The statutory deadline for making a transitional application is June 30, 2009.

The Tribunal’s Rules

5The Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code set out the steps required to file a transitional application:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and,

b) the Commission complaint file number.

The Respondents’ Position

6The respondents submitted that the Applications were not filed by June 30, 2009 because were never properly served by the Applicant with a Form TR-1 and original complaint, and they only received them when they were sent by the Tribunal in August and September 2009. The respondents acknowledge that they did receive a copy of the original complaint, together with a request for order (TR-4) from the applicant on May 26, 2009.

The Chronology

7On May 12, 2009, the Tribunal received a section 53(5) application (TR-1) and Request for Order during Proceedings (TR-4) with respect to the Union, attaching the original complaint and various additions to the original complaint. The applicant also filed a statement of delivery indicating that these materials had been delivered to the Union. The Union acknowledges receiving this material on May 26, 2009, except for the TR-1 Application form.

8On May 21, 2009, the Tribunal received a section 53(5) application with respect to the Employer respondents, attaching the original complaint and various additions to the original complaint. On May 26, 2009, the applicant filed a Request for Order during Proceedings (TR-4) and a statement of delivery indicating that the application, complaint, supporting documents and TR-4 had been delivered to the Employer respondents. The Employer acknowledges receiving this material on May 26, 2009, except for the TR-1 Application form.

9On July 21, 2009, the Tribunal acknowledged confirmation of receipt of the Applications and the requests for orders and proposed processing the Applications together.

Analysis

10Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

11I agree with the respondents that June 30, 2009 is a statutory deadline and I have no discretion to waive or extend that deadline. However, I do have to determine when an application is “made” to the Tribunal and in doing so I have the discretion to waive the Tribunal Rules.

12In my view, an application is made to the Tribunal if an applicant has filed sufficient material with the Tribunal by June 30, 2009 to indicate their intention to make an application. In some cases, the TR-1 form may suffice. In other cases, the original Commission complaint may suffice.

13Delivery of the application to the respondent is one of the most difficult aspects of the process to complete successfully. Although the Commission generally provided the complainant with the contact information for the respondents and their counsel, Tribunal experience has shown that corporate respondents may refuse to accept delivery on behalf of personal respondents, regardless of whether they continue to work for the corporate respondent, may refuse to disclose contact information for personal respondents so that delivery can be made directly to them, and may refuse to accept service delivered upon their counsel who represented them at the Commission. Understandably, this makes the delivery process difficult. Thus, sufficiency of the statement of delivery will generally not affect the date on which the application is considered to have been made to the Tribunal.

14My discretion to waive the Tribunal Rules is set out in Rule 4.3:

4.3 To ensure the fair, just and highly expeditious resolution of an Application under section 53(3) or section 53(5) of the Code the Tribunal may:

a) vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms;

15In the circumstances of this case, I have exercised my discretion to relieve against the technical requirements of Rule 12 regarding the filing of an application. Having regard to the fact that the respondents were aware of the complaints since 2006, and had been served with material clearly indicating that the applicant was attempting to file a transition application on May 26, 2009, I find that these are appropriate circumstances to relieve against the strict application of the Rules.

16As the applicant filed the Applications with the Tribunal and delivered most of the material to the respondents in May 2009, I find that the Applications were made prior to the statutory deadline.

Applicant’s Requests for Order

17The applicant has requested that the respondents be deemed to have accepted the allegations set out in the Applications because they did not file their Responses (TR-2) in a timely manner. Having regard to the dispute whether the Applications were made in a timely manner, and the applicant’s apparent failure to deliver a TR-1 to the respondents, I find that the Responses were not filed outside the time limits.

18The applicant requested production and information from the respondents. These requests are premature. After a hearing is scheduled, the Tribunal sets deadlines for the parties to exchange information and documents. While parties are free to exchange documents earlier, they are not required to do so.

19The applicant made a request to add three personal respondents and two corporate respondents to the Union application. The allegations against Randy Millage and Brian Atkinson arose after the complaint was filed and I find it is not appropriate to add them to these proceedings. The original Union complaint does not contain any allegations which could give rise to a finding of discrimination by the CUPE National or the Canadian Labour Congress or Marie Walker of the Canadian Labour Congress and therefore it not appropriate to add them as parties to this proceeding

20The applicant made a request to add six personal respondents to the Employer application. The original Employer complaint does not contain any allegations which could give rise to a finding of discrimination by these persons and therefore the request to add them is denied.

Employer Respondent’s preliminary objections

21The employer respondent has raised several preliminary issues, including clarification of the subject matter of the Employer Application, removal of the personal respondents and failure to plead a prima facie case.

22The applicant is directed to file a written response to these issues within 14 days of the date of the Interim Decision.