Herbert v. Loblaw Companies Limited, 2009 HRTO 2231

Human Rights Tribunal of Ontario

B E T W E E N:

Jacinth Herbert

Applicant

-and-

Loblaw Companies Limited

Respondents

AND BETWEEN:

Jacinth Herbert

Applicant

-and-

Metro Ontario Inc. (formerly o/a A & P Canada Inc. /Dominion

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 18, 2009

Citation: 2009 HRTO 2231

Indexed as: Herbert v. Loblaw Companies

1These Applications were received by the Tribunal on June 20, 2009. The respondent Metro Ontario Inc. (“Metro”) in TR-0964-09 asked the Tribunal to dismiss the Application against it on the basis that the applicant had not properly filed the Application by June 30, 2009. They also inquired whether the applicant, a former mediator with the Ontario Human Rights Commission is currently employed by the Tribunal as this may create a conflict of interest. The Tribunal confirms that the applicant is not employed by the Tribunal.

THE LEGISLATION

2As of June 30, 2008, the system for enforcing rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (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 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 20, 2009, the Tribunal received a section 53(5) application (TR-1), together with the original complaint dated April 24, 2008, and a statement of delivery (Form C). The statement of delivery indicated that the applicant had faxed the Application to a Mervyn Allen, at the store location. The respondent in TR-0964 states that they did not receive this material on June 30, 2009.

7A copy of these materials is enclosed with the Interim Decision for the convenience of the respondent in TR-0964.

ANALYSIS

8Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

9June 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.

10In 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.

11Delivery 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.

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. Assuming, without deciding that the respondents’ did not receive a copy of the Application materials on June 30, 2009, I will exercise my discretion to relieve against the requirement to deliver the Application to the respondents prior to filing with the Tribunal.

14This matter will proceed to mediation as scheduled on January 27, 2009. The respondent in TR-0964 is directed to file a Response (TR-2) immediately.