Dueck v. Toyota Motor Manufacturing Canada, 2009 HRTO 1962

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dan Dueck

Applicant

-and-

Toyota Motor Manufacturing Canada Inc. and Graham Browne

Respondents

AND B E T W E E N:

Dan Dueck

Applicant

-and-

Toyota Motor Manufacturing Canada Inc., Luc Haman, Chris Dahmer and Mark Geene

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 18, 2009

Citation: 2009 HRTO 1962

Indexed as: Dueck v. Toyota Motor Manufacturing Canada

1These Applications were received on June 4, 2009. The respondents assert that Application TR-0957-09 is barred because it was 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 Chronology

6On June 4, 2009, the Tribunal received a section 53(5) application (TR-1), two complaints (JPEG-6A2N77 and TSAE-6QGQU2) and a Statement of Delivery (Form C) indicating that the applicant had delivered the above materials by hand to the law firm which he listed as representing the respondents.

7Complaint JPEG-6A2N77 was filed with the Ontario Human Rights Commission on January 31, 2005 and alleged harassment and discrimination by corporate respondent and personal respondents Haman, Dahmer and Geene. This Application, (the “harassment application”) was assigned Tribunal File No. TR-0957-09.

8Complaint TSAE-6QGQU2 was filed with the Commission on October 26, 2006 and alleges discrimination and reprisal resulting from, among other things, the termination of his employment. The named respondents are the corporate respondent and Graham Browne. However, the TR-1 filed with the Tribunal on June 4, 2009 lists only the TSAE-6QGQU2 Complaint, the corporate respondent and Graham Browne. This Application (the “termination application”) has been assigned Tribunal File No TR-0416-09.

9On July 16, 2009, the Tribunal received a second TR-1 referencing the harassment complaint JPEG-6A2N77 and naming the respondents in that complaint.

10The respondents do not object to the timeliness of the filing of the termination application.

The Respondents’ Position

11The respondents submitted that the harassment application was not filed by June 30, 2009 because the TR-1 form delivered June 4, 2009 did not refer to the harassment complaint (although the harassment complaint was attached to the termination complaint) and the TR-1 was not properly delivered to the personal respondents or the corporate respondent, but rather to their counsel.

Analysis

12Section 53(5) effectively sets a deadline of June 30, 2009 when a transitional application may be “made” to the Tribunal.

13I 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.

14In 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.

15Delivery 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.

16My 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;

17In 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 harassment complaint since 2005, and that harassment complaint was attached with the TR-1 form delivered on June 4, 2009 to respondent’s counsel, I find that these are appropriate circumstances to relieve against the strict application of the Rules.

18As the applicant filed the harassment application with the Tribunal and delivered most of the material to the respondents on June 4, 2009, I find that the harassment application was made to the Tribunal prior to the statutory deadline.

Request for Submissions on Civil Action

19In his Application, the applicant attached a statement of claim for wrongful dismissal arising out of his termination. The Tribunal seeks submissions from the parties whether the present Applications are barred or should be deferred in light of the civil action:

• The respondents shall deliver their submissions within 14 days of the date of this Interim Decision;

• The applicant shall file its submissions with 14 days of receipt of the respondents’ submissions;

• The respondents shall deliver reply submissions, if any, within seven days of receipt of the applicant’s submissions.