Jan Koestel v. Angel’s Diner/1175191 Ontario Inc. and Chris Kyriacou, 2009 HRTO 2139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jan Koestel

Applicant

-and-

Angel’s Diner/1175191 Ontario Inc. and Chris Kyriacou

Respondents

INTERIM DECISION

Adjudicator: Alan Whyte

Date: December 9, 2009

Citation: 2009 HRTO 2139

Indexed as: Koestel v. Angel’s Diner

1In this Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), the applicant alleges discrimination in employment on the grounds of sex, disability, record of offences as well as reprisal.

2In Form 1-A attached to the Application, in response to the question "Do you believe you were discriminated against because of a record of offences under a federal law (Criminal Code offence)?", the applicant responded no. In the narrative in support of the Application, there is no reference to discrimination on the basis of record of offences. Therefore the Application will be processed by the Tribunal without regard to that ground of discrimination.

3In their Response, the respondents have raised the issue of delay in the filing of the Application. The applicant’s employment was terminated by the corporate respondent on April 6, 2008, but he did not attempt to file a human rights complaint with the Ontario Human Rights Commission (“the Commission”) until May 5, 2009. The Commission had no jurisdiction to accept a complaint filed after June 30, 2008.

4The applicant then attempted to file a s. 53(5) Application with the Tribunal on May 12, 2009 under the transitional provisions of the Code. The Tribunal informed the applicant by letter dated June 16, 2009 that as his human rights complaint was never filed with the Commission, he was not able to file his Application under s. 53(5). This Application was filed with the Tribunal on June 22, 2009.

5Against this background, there is no issue as to whether or not the applicant’s prior human rights complaint was “filed” with the Commission. In view of the fact that the parties have agreed to proceed to mediation, a mediation will be scheduled by the registrar's office as soon as conveniently possible. The respondents’ objection regarding the delay issue will be dealt with by the Tribunal after mediation, if necessary.

6I am not seized of this matter.