Arrindell v. Toronto Marriot Downtown Eaton Centre, 2009 HRTO 1825

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronica Arrindell

Applicant

-and-

Toronto Marriot Downtown Eaton Centre

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 29, 2009

Citation: 2009 HRTO 1825

Indexed as: Arrindell v. Toronto Marriot Downtown Eaton Centre

1This Application was first received by the Tribunal on January 7, 2009, although the applicant did not complete the Application until August 8, 2009. The respondent asserts that the Application cannot proceed because it was filed after the June 30, 2009 statutory deadline.

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 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 Chronology

6On January 7, 2009, the Tribunal received a section 53(5) application (TR-1) with the original complaint attached. On March 23, 2009 the Tribunal wrote to the applicant, with a copy to the respondent advising that the Application was incomplete as no Statement of Delivery (Form C) was filed indicating that the Application and complaint had been delivered to the respondent. The respondent was copied on this letter.

7The letter stated that the applicant had to complete the Application within 21 days or the Application would be dismissed. On July 29, 2009, the applicant apparently delivered the Application to the respondent by fax, and sent a confirming Statement of Delivery to the Tribunal on August 7, 2009.

Analysis

8Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

9I agree with the respondent 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.

10In 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.

11My 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;

12The respondent asserted that as a result of the Tribunal’s March 23, 2009 letter indicating the Application would be dismissed if not completed within 21 days, that the Application was effectively dismissed 21 days after March 23, 2009. In my view, the Tribunal’s notice of an intention to dismiss an Application does not operate to effectively dismiss an Application.

13Despite the applicant’s delay in completing the Application, in light of the March 23, 2009 letter and the June 30, 2009 statutory deadline, I find that it would be unduly technical to dismiss the Application.

14The respondent has been aware of the original complaint since August 2007 and aware that the applicant was attempting to continue the complaint as a transitional Application since March 2009. There is no prejudice to the respondent in this delay in completing the Application, as completion merely involved delivering the Application and the complaint to the respondent. The respondent already had the complaint and the transitional Application form is merely a document confirming that the applicant is intending to pursue the complaint as a transitional Application.

15On the other hand, strictly enforcing the Tribunal’s Rules would prevent the applicant from seeking to enforce her quasi-constitutional right to be free from discrimination.

16In these circumstances, I have determined that it would be fair, just and expeditious to waive the Tribunal Rule requiring the applicant to have delivered the Application to the respondent prior to making the application to the Tribunal.

17The respondent has also raised a preliminary objection to the Application on the basis that the applicant settled the subject matter of the Application and signed a release. This preliminary issue will be addressed at the hearing scheduled for November 27, 2009.