Maureen Moloughney v. Grey Sisters of the Immaculate Conception and Marjory Myles, 2009 HRTO 268

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maureen Moloughney

Applicant

-and-

Grey Sisters of the Immaculate Conception and Marjory Myles

Respondents

INTERIM decision

Adjudicator: Ailsa Jane Wiggins

Date: March 9, 2009

Citation: 2009 HRTO 268

Indexed as: Moloughney v. Grey Sisters

INTRODUCTION

1This Interim Decision deals with a jurisdictional issue regarding an Application filed on October 15, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents filed their Response on November 13, 2008. Both before and after filing their Response they raised a jurisdictional issue. They argued that when the Ontario Human Rights Commission (the “Commission”) decided not to refer the applicant’s complaint to the Tribunal, that put an end to her complaint and she should not be allowed to avail herself of the transition provisions in section 53(3) of the Code. Instead they suggested that the Commission’s reconsideration process should be brought to its conclusion. In the alternative, the respondents argued that to allow the applicant to transfer her complaint to the Tribunal after the Commission had declined to refer it to the Tribunal, it would be an abuse of process.

3In an Interim Decision, 2008 HRTO 281, the Alternate Chair ordered the parties to provide additional information and submissions on the jurisdictional issue raised by the respondents. This Interim Decision is based on those written submissions.

4The respondents argue that the Tribunal does not have jurisdiction to deal with this Application because by filing an application for reconsideration prior to making her Application under section 53(3) the applicant had attorned to the jurisdiction of the Commission and was obliged to await the outcome of its reconsideration process. The respondents argue that the applicant, by filing her Application under section 53(3) of the Code so soon after she had applied to the Commission for reconsideration, knowingly and deliberately abused the system.

5The applicant argues that she filed a request for reconsideration to the Commission which had the effect of continuing the complaint. The applicant denies that she abused the process in any way and submits that she was entitled to abandon her continued complaint and file an application under section 53(3) of the Code with the Tribunal.

Decision

Jurisdiction over this Application

Is the request for reconsideration timely?

6The first question is whether the request for reconsideration made to the Commission was timely. Section 37 of the old Part IV of the Code provided that a request for reconsideration must be filed within 15 days of the mailing of the Commission decision, or “such longer period as the Commission for special reasons may allow.”

7The Commission’s letter advising the applicant that her complaint had been dismissed was dated September 29, 2008. The applicant filed an application for reconsideration under cover of a letter dated October 10, 2008. By letter dated October 15, 2008, the Commission acknowledged receipt of the application for reconsideration. Therefore, it appears that the request for reconsideration was filed in a timely manner.

Can the applicant abandon a complaint that is under reconsideration or by applying for reconsideration has the applicant attorned to the jurisdiction of the Commission?

8The respondents submitted that the applicant should not be permitted to abandon her dismissed complaint while it is awaiting reconsideration by the Commission and file a section 53(3) application with the Tribunal.

9The relevant portions of sections 53 of the Code provide:

(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)

10June 30, 2008 was the effective date of the new Code. Section 53(2) continues the Commission’s power to reconsider complaints under section 37 of the old Code, and indeed requires it to do so during the six-month period ending December 31, 2008. Therefore, where a timely request for reconsideration is filed in respect of a complaint that was dismissed by the Commission, that complaint is “continued” and the applicant may elect to abandon his or her complaint and make an application to the Tribunal.

11The respondents argue that the applicant, by filing a request for reconsideration, attorned to the Commission’s jurisdiction and therefore should not now be permitted to abandon her complaint and bring an application to the Tribunal. However, as the applicant points out, the respondents provide no authority for their position, which is contrary to the right granted to complainants under section 53(3). The Legislature could have provided that complaints in the reconsideration process could not be abandoned and transferred to the Tribunal but it did not.

ABUSE OF PROCESS

12The respondents submitted that, in light of the Commission’s decision to dismiss the complaint, the applicant’s decision to abandon her complaint at the Commission and transfer it to the Tribunal under section 53(3) of the Code is an abuse of process.

13As I mentioned in paragraph 11 above, the Legislature could have decided that the complaints dismissed under section 36 or 34 of the Code could not be abandoned and transferred to the Tribunal. Instead it chose to provide a transitional scheme whereby any complaint in which the Commission maintained the authority to consider whether a referral to the Tribunal was appropriate, could be abandoned and become the subject of an application to the Tribunal.

RECENT TRIBUNAL DECISIONS

14The question whether complaints in the Commission’s reconsideration process can be transferred to the Tribunal has come before the Tribunal several times. While I am not bound by those earlier decisions, their reasoning is persuasive. One of those decisions was issued the day before the respondents’ written submissions were filed and another four days after their submissions were filed, so it is unlikely that either case was available to the respondents’ counsel.

15In Zavadsky v. Ontario (Education), 2008 HRTO 383, an Interim Decision of the Chair dated December 10, 2008 and in Saxon v. Amherstburg Police Services Board, 2008 HRTO 395, an Interim Decision of the Alternate Chair dated December 15, 2008, the Tribunal found that complaints that were in the Commission’s reconsideration process were continuing complaints which could be abandoned and transferred to the Tribunal.

16The applicant’s ability to keep the complaint alive by applying for reconsideration and then transferring it to the Tribunal may seem unfair to the respondents. I sympathize with that view. However, as I have said, from the wording of the Code it appears that the Legislature intended to give complainants that option. Only when the Commission has finally dealt with a complaint, either by the Commission declining to refer a reconsidered complaint or after the period for reconsideration of a dismissed complaint has passed, can the complaint be said not be a “continuing” complaint which the complainant may abandon and transfer to the Tribunal.

17For the foregoing reasons, I find that this Application is within the Tribunal’s jurisdiction.

NEXT STEPS

18The Rules Governing Section 53(3) applications contemplate that the first step in processing section 53(3) applications is mediation. The parties are directed to contact the Registrar-Transition, within ten days of the date of this decision, to set a date for mediation.