Mary Thompson v. Toronto Linen Inc., 2009 HRTO 272

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Thompson

Applicant

-and-

Toronto Linen Inc.

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March 10, 2009

Citation: 2009 HRTO 272

Indexed as: Thompson v. Toronto Linen

1This Interim Decision relates to an Application received by the Tribunal on December 30, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The respondent challenges the jurisdiction of the Tribunal to accept the Application on two bases. First, they assert that the Application does not properly name the respondents in the Form A and therefore they are not properly named as respondents in the Application. Second, they assert that the applicant failed to properly deliver the Application to the respondents before December 31, 2008 and therefore the Tribunal has no jurisdiction to accept the Application under section 53(3).

3This Interim Decision is based on the written submissions of the respondents. I did not call upon the applicant to respond.

4In the original complaint filed with the Ontario Human Rights Commission on August 22, 2007, the named respondents are Toronto Linen Inc. and Frank Nigro. The complaint also notes that the name of the personal respondent is corrected to reflect Frank Nigro rather than Frank Carnevale.

5On December 30, 2008, the applicant's counsel delivered a section 53(3) application to the Tribunal naming Toronto Linen Inc. as the corporate respondent. Frank Carnevale is named as a contact person for the respondent. Frank Nigro is not named as a personal respondent. Accordingly, Toronto Linen Inc. is the only respondent to the Application and the style of cause is corrected to confirm this.

6Applicant's counsel also filed a Statement of Delivery of the Application on respondent. The applicant contends the Application was delivered by courier and fax to the respondent to the attention of Frank Carnevale. On January 26, 2009, counsel for the applicant couriered a second copy of the Application to the counsel for the respondent.

7The respondent does not dispute that the Application was received at its premises but notes that Frank Carnevale has not worked for it for approximately 10 years. Further, the respondent notes that the Application was over 20 pages and was delivered by fax, without the consent of the respondent. Accordingly, the respondent takes the position that the Application was not made to the Tribunal in a timely fashion. In their view, an Application is only effectively "filed" with the Tribunal when delivered to the Tribunal after proper delivery to the Respondent, in accordance with Rule 6.1 of the Tribunal's Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code.

8Those Rules provide:

1.14 Documents may be filed with the Tribunal by:

a) facsimile transmission (fax) to the Tribunal;

b) hand delivery, courier, or regular, registered or certified mail to the Human Rights Tribunal of Ontario;

c) e-mail sent to hrto.registrar-transition@ontario.ca; or,

d) as directed by the Tribunal.

1.15 Filing is deemed to take place by:

a) fax, on the date automatically imprinted on the document by the Tribunal's fax machine, but if the fax confirmation receipt indicates a time after 5 p.m., filing will be deemed to have occurred the next day;

b) e-mail, on the date automatically electronically imprinted on the document by the Tribunal's electronic message delivery system, but if the e-mail confirmation indicates a time after 5 p.m., filing will be deemed to have occurred the next day;

c) hand delivery, courier, or mail, on the date of receipt stamped on the document by the Tribunal.

1.16 A party filing any document with the Tribunal must deliver a copy of the document to all other parties to the Application and must verify that s/he has done so by completing and filing a separate Statement of Delivery (Form C).

1.17 Documents must be delivered in one of the following ways:

d) fax, but only if the document is less than (twenty) 20 pages in length or, if longer, with consent;

3.5 A technical defect or irregularity is not a breach of these Rules.

4.1 The Tribunal may exercise any of its powers under these Rules at the request of a party or on its own initiative in accordance with Rule 1.1.

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;

6.1.1 To file a section 53(3) Application an Applicant must complete the Application (Form A), deliver it to the Respondent(s) and file it with the Tribunal.

6.2 The completed section 53(3) Application (Form A) must be filed on or before December 31, 2008 and must include:

i. the complaint or the amended complaint filed at the Commission; and,

ii. the Commission complaint file number.

9The date upon which a Tribunal considers an Application "filed" has important consequences for applicants and respondents. Section 53(3) applications must be filed prior to December 31, 2008.

10In accordance with Rule 1.15, the Tribunal records the date and time an Application is received and treats that as the date of "filing." In some cases, it is not apparent from the material filed whether the applicant has properly delivered the Application and the underlying complaint to all the respondents. In such cases, the Tribunal advises the parties that the Tribunal has received an incomplete Application. Once the applicant satisfies the Tribunal that the applicant has properly delivered the Application, the Application is processed and the Tribunal treats it as having been filed on the date originally received by the Tribunal. In my view, this approach best balances the interests of applicants and respondents and the intention of the Legislature with respect to the treatment of transitional applications.

11It would be unduly technical to accept the respondent's argument that, because the Application did not name the correct contact person, the Application was not properly delivered. I also find that it would be unduly technical to accept the respondent's submission that because the Application materials, which exceeded 20 pages, were faxed without the consent of the respondent, the Application cannot be considered properly filed with the Tribunal.

12For these reasons, the respondent's request that the Application be dismissed as outside the Tribunal's jurisdiction, is dismissed.