Smith v. Astley Gilbert Limited, 2009 HRTO 344

Human Rights Tribunal of Ontario

BETWEEN:

Junior Colvin Smith Applicant

-and-

Astley Gilbert Limited, Wayne Wilbur, John Rozinger, Adrian Royer, Warren Eade, Scott Baldwin, Charles Markham and John Markham Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: March 24, 2009 Citation: 2009 HRTO 344 Indexed as: Smith v. Astley Gilbert Limited

1This is an Application filed December 22, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The respondents have not yet filed a Response and are not required to file their Response until the matter identified below has been resolved.

2The underlying complaint giving rise to this Application is undated. The Ontario Human Rights Commission ("Commission") ceased accepting complaints on July 1, 2008. It is not clear whether this complaint was filed with the Commission before June 30, 2008. The respondents have filed a letter from the Commission dated July 16, 2008 advising the applicant that the file he initiated at the Commission was closed on the basis that he advised the Commission that he intended to file a new Application with the Tribunal. Instead of filing a new Application under Part IV of the Code, the applicant attempted to file a section 53(3) Application under Part VI of the Code.

3The Tribunal has no jurisdiction to consider an application made under section 53(3) unless it is based on the subject-matter of a complaint filed before June 30, 2008.

4In the circumstances, the Tribunal requires more information and submissions from the parties on whether this Application is properly before the Tribunal under section 53(3) of the Code.

5The Tribunal makes the following Orders:

• The Ontario Human Rights Commission will be provided with a copy of this decision, along with a copy of the complaint related to the present Application.
• Within 20 days of the date of this decision, the Commission shall advise the Tribunal and the parties whether the attached complaint was filed with the Commission, and if so, the date it was filed and the status of the complaint at December 31, 2008.
• Within 20 days of the receipt of this information, the parties may file written submissions on whether the present Application was properly filed under section 53(3) of the Code.
• Within 10 days of receipt of each other's submissions, the parties shall file their replies, if any.

6The Tribunal may decide the preliminary issues on the basis of the written submissions. If oral submissions are required, the Tribunal will contact the parties to set a case resolution conference.

7I am not seized of this matter.