Mushtaq v. Liverton Hotels International Inc., 2009 HRTO 1740

Human Rights Tribunal of Ontario

BETWEEN:

Mohammad Mushtaq Applicant

-and-

Liverton Hotels International Inc. o/a Metropolitan Hotel Toronto Respondent

DECISION

Adjudicator: Kaye Joachim Date: October 22, 2009 Citation: 2009 HRTO 1740 Indexed as: Mushtaq v. Liverton Hotels International

WRITTEN SUBMISSIONS BY:

Mohammad Mushtaq, Applicant (On his own behalf) Liverton Hotels International Inc. o/a Metropolitan Hotel Toronto, Respondent (Doreen E. Snelling, Counsel)

1This is an Application filed June 22, 2009 under section 53(5) 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 (the "Commission") on May 30, 2005 and abandoned upon the filing of the Application to the Tribunal.

2The respondent submitted that the Tribunal may not deal with this Application because the complaint upon which the Application is based was withdrawn by the applicant on November 15, 2005.

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

Decision

4At the request of the Tribunal for the status of the complaint, the Commission stated that its records indicated that the complaint was closed as withdrawn by the complainant on November 15, 2005. An electronic record made on November 15, 2005 indicated that the applicant's representative at the time contacted the Commission staff by telephone to advise that his client was withdrawing the complaint. On November 15, 2005, the Commission wrote to the representative and the respondent confirming that the complaint was closed as withdrawn by the complainant.

5The applicant submitted an affidavit from his former representative who denied that he had verbally requested that the complaint be withdrawn. Rather, he had requested that the complaint be suspended pending the outcome of an application pending before the Ontario Labour Relations Board. The Affidavit did not address why the representative did not respond to the Commission's letter of November 15, 2005 advising that the complaint was withdrawn and the file closed.

6Section 53 of the Code 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).

(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.

7Regardless of the representative's intentions, the letter from the Commission dated November 15, 2005 is clear that the complainant's file was closed. The applicant did not submit evidence of any contact with the Commission between November 15, 2005 and the date of filing the present Application.

8The evidence establishes that the Commission closed the applicant's complaint file on November 15, 2005 and therefore there was no continued complaint that the applicant could abandon to file the present Application.

9The Application is dismissed.