Moore v. Kippendavie Cooperative, 2009 HRTO 1848

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wanda Moore

Applicant

-and-

Kippendavie Cooperative Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: November 3, 2009

Citation: 2009 HRTO 1848

Indexed as: Moore v. Kippendavie Cooperative

1This is an Application filed on March 18, 2009 under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in housing on the basis of disability. In her Application, the applicant indicated that she had filed a Complaint with the Ontario Human Rights Commission (the “Commission”) based on the same facts as this Application and attached a copy of a Complaint dated April 1, 2004. She also provided a copy of a letter from the Commission to her, dated August 19, 2008, which states as follows:

This letter is in receipt of your letter dated August 18, 2008, requesting withdrawal of the above noted complaint.

Please be advised that on the basis of your request, the Commission has closed the above noted file.

The applicant asserted in her Application that the Complaint with the Commission “was withdrawn to permit the Complaint before the Tribunal as per amendments to the Human Rights Code.”

2In response to the Application, the respondent filed a Request for Early Dismissal – Without Full Response (‘Request”). The respondent submits that the Application should be dismissed under s. 53(8) of the Code because the applicant filed a Complaint with the Commission, based on the same, or substantially the same, facts as this Application. The respondent also submits that, following the withdrawal of her complaint on August 18, 2009, and certainly at this point, an application under s. 53(3) or (5) is not available.

3The respondent also provided submissions by way of letter dated August 5, 2009, asking the Tribunal to dismiss the Application pursuant to s. 53(8) and reserving the right to reply to any submissions made by the applicant. By letter dated August 28, 2008, the Tribunal directed the applicant to file submissions in response and indicated that the respondent may provide reply submissions. The Tribunal also indicated that it would decide how to proceed with respect to the respondent’s Request on receipt of the submissions.

4The applicant provided a Response to the respondent’s Request. The applicant submits that the Tribunal does have jurisdiction over the Application as the previous Complaint before the Commission was continued beyond the effective date of July 1, 2008, and subsequently abandoned for the express purpose of pursuing the matter further before the Tribunal, and prior to a final determination of the matter by the Commission as contemplated by s. 53 of the Code. In the alternative, the applicant asks that the Tribunal exercise its discretion to consider the Application as made under s. 53 of the Code. In particular, the applicant submits that she demonstrated a clear intention to abandon her Complaint with the Commission and to continue that Complaint with the Tribunal and that this intention was communicated to counsel for the respondent by counsel for the applicant a short time following the decision by the applicant to withdraw her complaint from the Commission. The applicant also submits that the matter is of an ongoing and continuous nature.

5The applicant also requested an opportunity to call evidence at a hearing and to address any issues that may arise from her submissions by way of oral argument.

6In reply submissions, the respondent disputes that it was the applicant’s “clear intention” to re-file with the Tribunal and that the respondent was told of this at any time. The respondent also submits that the Application cannot be converted to a transitional application under either s. 53(3) or s. 53(5), as nothing was filed with the Tribunal during the last half of 2008, the Complaint was withdrawn, and the statutory time period for transitional applications has passed and the Tribunal has no jurisdiction to extend it.

7The material before the Tribunal raises an issue of whether the Tribunal has jurisdiction over the matters raised in the Application. In the circumstances, the Tribunal finds that it is appropriate to hold an oral hearing to determine the issues of whether the Application is barred by virtue of s. 53(8) of the Code and whether the Complaint is “continued” within the meaning of s. 53, permitting an application under either s. 53(3) or s. 53(5). The Registrar will schedule a one-day hearing in this matter and the Tribunal will hear evidence and submissions on these preliminary issues.

8The parties shall identify any witnesses they wish to call and provide a brief summary of their expected evidence by letter to the Registrar, copied to the other party, at least two weeks prior to the date of the hearing. In addition, if either party wishes to rely on case law or other supporting materials at the hearing that have not already been provided to each other and the Tribunal, they are directed to deliver such materials to each other and the Tribunal by no later than two weeks before the date of the hearing.

9I am not seized.