Gerarda Fournier v. Chrysler Canada Inc., 2009 HRTO 40

Human Rights Tribunal of Ontario

B E T W E E N:

Gerarda Fournier Applicant

-and-

Chrysler Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: January 13, 2009 Citation: 2009 HRTO 40 Indexed as: Fournier v. Chrysler Canada

1This is an Application filed November 12, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A mediation has been scheduled for February 23, 2009.

Parties to the Application

3The named respondent to the underlying complaint filed with Ontario Human Rights Commission was Daimler Chrysler. Counsel for this respondent has identified the correct legal name as Chrysler Canada Inc. The style of cause is amended to reflect the correct legal name of the respondent. In her Application to the Tribunal, the applicant also named the Canadian Auto Workers, Local 1285.

4Section 53(3) applications must be based on the "subject-matter of the complaint" originally filed at the Commission. The parties named in the original complaint are the parties to the Application. Thus, the Canadian Auto Workers, Local 1285 is not a party to the Application. Rule 5.15 provides that requests to add parties will only be considered in exceptional circumstances which do not exist at this stage of the proceedings.

Is this a continued complaint?

5In the materials filed with her Application, the applicant included a decision of the Ontario Human Rights Commission dated September 23, 2008 in which the Commission decided not to refer the complaint to the Tribunal. It is not clear whether the applicant sought reconsideration of this decision before filing the present Application on November 12, 2008.

6Section 53(3) of the Code provides:

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.

7The Tribunal requires additional information and submissions from the parties on this issue. Therefore, the Tribunal makes the following order:

• The mediation scheduled for February 23, 2009 is cancelled.
• Within 20 days of this decision, the applicant shall deliver to the respondent and file with the Tribunal a copy of:
  1. the cover letter, if any, from the Commission enclosing the September 23, 2008 decision.
  2. confirmation from the applicant whether she filed a request for reconsideration of the September 23, 2008 decision, and if so, any correspondence to or from the Commission in relation to any request for Reconsideration.
• Within 20 days of receipt of the information identified in the paragraph above, the respondent shall deliver to the applicant and file with the Tribunal submissions on its position whether the Tribunal has jurisdiction to deal with this Application under section 53(3) of the Code. The respondent should at the same time provide any documents relevant to its position. At the same time, the respondent shall file its Response (Form B).
• Within 20 days of receipt of the respondent's submissions, the applicant shall deliver any reply submissions to the respondent and file them with the Tribunal.

8The Tribunal may determine the jurisdictional issue based on the written submissions. If oral submissions are required, the Tribunal will contact the parties to schedule a Case Resolution Conference.

9The parties are directed to the following decisions: Zavadsky v. Ontario (Education), 2008 HRTO 383; Saxon v. Amherstburg Police Services Board, 2008 HRTO 395.