Argueta v. Conseil Scolaire du District Catholique Centre-Sud, 2009 HRTO 2122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosa Argueta

Applicant

-and-

Conseil Scolaire du District Catholique Centre-Sud

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: December 8, 2009

Citation: 2009 HRTO 2122

Indexed as: Argueta v. Conseil Scolaire du District Catholique Centre-Sud

Introduction

1This is an Application received January 5, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Tribunal sought information and submissions from the Commission and the applicant on the status of the underlying complaint at the Commission. The applicant did not file any submissions.

3The Commission responded advising that, in its view, the complaint had not been filed with the Commission. The Commission's records indicate that the Commission received a completed complaint from the applicant on June 13, 2008. On July 16, 2008, the Commission wrote to the applicant advising, in part:

We have indicated to you that it is unlikely the Commission will be able to deal with your complaint, and have therefore advised you to file an application directly with the Human Rights Tribunal of Ontario (the "Tribunal"). You have accordingly decided to do so. The file you initiated with the Ontario Human Rights Commission has been closed as requested.

4The Commission closed the matter on July 21, 2008 with the status "withdrawn". No formal complaint was filed or served on the respondent.

5The relevant provisions of section 53 are set out below:

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. (emphasis added)

(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.

6I find that although the applicant submitted a complaint to the Commission prior to June 30, 2008, in the circumstances as described above, the complaint was not "filed" with the Commission within the meaning of section 53(1).

7Accordingly, the applicant may not file the present Application under section 53(5) of the Code and the Application is dismissed.

8Nothing in this Decision precludes the applicant from seeking to file an application under section 34 of the Code in the Tribunal's new applications stream, using Form 1, the form applicable for Applications under s. 34 of the Code. The applicant may wish to consult the Applicant's Guide, available on the Tribunal's website or from the Registrar's office. Pages 2 – 3 of the Guide set out sources of assistance that may be available to her.