Fournier v. Chrysler Canada, 2009 HRTO 302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerarda Fournier

Applicant

-and-

Chrysler Canada Inc.

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: March 16, 2009

Citation: 2009 HRTO 302

Indexed as: Fournier v. Chrysler Canada

Introduction

1This is an Application received November 12, 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 July 20, 2005 and abandoned upon the filing of the current application.

2This Decision addresses the Tribunal’s jurisdiction to deal with this Application and is based upon the written submissions filed by the parties.

The Parties to this Application

3In her Application (Form A), the applicant named the union that was her representative at the time she worked for the respondent. However, the union was not a named party on the original complaint and therefore, was not properly named in the Application. The Tribunal recognizes that the applicant disagreed with the Commission’s decision not to include her union in the original complaint, but that does not alter the fact that the union is not a named party to the current Application.

Decision

4On September 23, 2008, the Commission decided not to refer the complaint to the Tribunal. By letter dated September 29, 2008, the Commission advised the applicant that she had 15 days to file a request for reconsideration. Based on the material before me, it appears that no request for reconsideration was made.

5Instead, on November 18, 2008, the applicant attempted to abandon the complaint and file the current Application.

6The transitional provisions of the Code provide that the complainant to a complaint filed with the Commission prior to June 30, 2008 which is continued at the Commission, may abandon the complaint and file an Application under section 53(3).

7In my view, the applicant’s complaint was not “continued” at the Commission on November 18, 2008 the day she attempted to abandon it. This is because the Commission had dismissed her complaint on September 23, 2008 and she did not file a request for reconsideration. Accordingly, the Commission decision effectively dismissed her complaint and it was no longer continued.

8The relevant provisions of section 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).

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