HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Malvar

Applicant

-and-

Toyota Motor Manufacturing Canada and Marjorie Kennedy

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 25, 2009

Citation: 2009 HRTO 2022

Indexed as: Malvar v. Toyota Motor Manufacturing Canada

1This Application was received by the Tribunal on June 26, 2009. The respondents seek to have the Application dismissed on the basis that 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 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 26, 2009, the Tribunal received a section 53(3) application (Form A), attaching the original complaint, and two Statements of Delivery indicating that the Form A and complaint had been sent to the corporate and individual respondents on June 23, 2009.

7On July 27, 2009, counsel for the corporate respondent wrote to the Tribunal advising that the section 53(3) application was filed beyond the statutory deadline of December 30, 2008.

8On August 21, 2009, the Tribunal wrote to the parties advising the applicant that the section 53(3) application, filed after December 30, 2009, was being treated as a section 53(5) Application and requiring the applicant to file the proper transitional Application. On August 31, 2009, the applicant filed the section 53(5) Application form on a Form TR-1, along with a statement of delivery indicating that it had been sent to the respondents’ counsel.

Analysis

9Section 53(3) and 53(5) set deadlines of December 30, 2008 and June 30, 2009 for when a transitional application may be “made” to the Tribunal.

10I 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.

11In 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 a transitional application.

12My 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;

13In 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 2005, and the applicant merely delivered the wrong from (Form A rather than Form TR-1), it is evident that the applicant was attempt to file a transitional application. I find that these are appropriate circumstances to relieve against the strict application of the Rules and to permit the applicant to file the proper form after June 30, 2009.

14I find that the Application was made prior to the statutory deadline.

15The mediation scheduled for December 23, 2009 will proceed.