Sauvé v. Northern College of Applied Arts and Technology, 2009 HRTO 2145

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas Sauvé

Applicant

-and-

Northern College of Applied Arts and Technology

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 10, 2009

Citation: 2009 HRTO 2145

Indexed as: Sauvé v. Northern College of Applied Arts and Technology

1This is an Application filed March 31, 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 purpose of this Interim Decision is to address a Request for Order During Proceeding filed by the respondent requesting the Application be dismissed. The applicant did not file a response to the Request.

3The original complaint filed with the Ontario Human Rights Commission in 2005, identifies the applicant as Nicholas Sauvé (“N. Sauvé”) by his litigation guardian Ron Sauvé (“R. Sauvé”), who is his father. The handwritten complaint alleges that the respondent failed to accommodate N. Sauvé’s disability related needs during his college course.

4The basis for the Request is that the Tribunal has no jurisdiction to hear this Application because it is about the infringement of N. Sauvé’s rights, but was filed by R. Sauvé.

5The transition form (TR-1) does name R. Sauvé as the applicant and contact person and is the person who signed the TR-1 Form. However, I note that the Statement of Delivery states the applicant is N. Sauvé. Further, the complaint attached to the TR-1 Form clearly indicated that the applicant was N. Sauvé.

6The respondent asserts that R. Sauvé could not file the Transition Application on behalf of N. Sauvé as his son is not a minor and R. Sauvé has not presented any indicating that he is authorized to act on behalf of N. Sauvé.

7The respondent relies upon a signed statement by N. Sauvé dated February 2005 which revokes consent for the respondent to release any confidential information about him to his parents.

The Legislation

8As 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.

9The 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.

10From 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

11The Tribunal’s Rules of Procedure for Transitional Applications 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.

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;

Analysis

12Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal. I find that the application by N. Sauvé was made to the Tribunal on March 31, 2009 when R. Sauvé filed it.

13I exercise my discretion to waive Rule 12 that requires the applicant to file the TR-1 form. However, I am not satisfied at this stage that the applicant N. Sauve wishes to pursue this Application.

14Within ten days of the receipt of this Interim Decision, the applicant N. Sauvé must confirm in writing to the Tribunal and the respondent that he wishes to pursue this Application. If the applicant wishes to designate a representative he must also indicate who that representative is.