Pham v. New World Friction ULC, 2009 HRTO 240

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bang Pham

Applicant

-and-

New World Friction ULC, Anil Sharma, Harbajan Johal, Jason Payne and Jennifer Limbert

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: March 4, 2009

Citation: 2009 HRTO 240

Indexed as: Pham v. New World Friction

Introduction

1This is an Application filed November 20, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (“Commission”) on June 21, 2006 and abandoned upon the filing of the Application.

2The respondents argue that the Tribunal does not have jurisdiction to deal with this Application because the complaint upon which the Application is based was closed by the Commission on October 29, 2007.

3This Decision is based upon the written submissions filed by the parties.

Decision

4On October 29, 2007, the Commission wrote to the applicant’s counsel as follows:

Please be advised that this complaint has been closed. No further action will be taken. This is in accordance with the correspondence received from the complainant on October 29, 2007.

A copy of this letter has been sent to the respondents for their reference.

5The respondents also sought a copy of the investigation file from the Commission and the Commission responded on January 28, 2009, in part, as follows:

According to the Commission’s records, this matter was closed on October 30, 2007 with the status, “Resolved during Investigation”. Because there was no “complaint that is continued” within the meaning of section 53 of the Code, the above-noted complaint cannot be the subject of an application before the Tribunal.

6The applicant’s representative asserts that neither he nor the applicant received a copy of the October 29, 2007 letter, and as far as they were aware, the applicant’s file was still “open.”

7In my view, the Commission’s letter dated October 29, 2007 addressed to applicant’s counsel establishes that the applicant’s complaint at the Commission was closed on October 29, 2007. Therefore, there was no complaint that was continued within the meaning of section 53 of the Code when the applicant filed the present Application.

8Section 53 of the Code provides:

(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).

9I find that this Application is not within the jurisdiction of the Tribunal.