Eva Kovac v. Zellers Inc., Ryan Sookdeo, Janice Michael, and Lucille Richards, 2009 HRTO 440

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eva Kovac

Applicant

-and-

Zellers Inc., Ryan Sookdeo, Janice Michael, and Lucille Richards

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 15, 2009

Citation: 2009 HRTO 440

Indexed as: Kovac v. Zellers

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It relates to a complaint that was filed at the Ontario Human Rights Commission (the “Commission”) that had not been dealt with on the merits as of December 31, 2008.

2The respondent seeks an order from the Tribunal giving directions in light of the fact that the Application was not filed under s. 53(5) of the Code. The applicant argues that she has the “option” to proceed as a new application, citing a letter she received from the Commission and arguing that the nature of the case requires a hearing and cross-examination.

3As part of the transition resulting from amendments to the Code that took effect on June 30, 2008, a person with a complaint continuing at the Commission that was not finally dealt with by the Commission, withdrawn or settled on December 31, 2008 may apply to the Tribunal before June 30, 2009. This right arises under s. 53(5) of the Code. The Tribunal has developed separate rules and forms for s. 53(5) applications, which do provide for oral hearings. The preamble to the Transition rules explains this as follows:

Section 53(3) of the Transitional Provisions of the Human Rights Code Amendment Act, 2006 (”Amendment Act”) provided that, during the six-month period commencing June 30, 2008, a person with a complaint continuing at the Ontario Human Rights Commission could abandon that complaint and, in accordance with the rules of the Human Rights Tribunal of Ontario, file an application with the Tribunal in respect of the subject-matter of the abandoned complaint. Section 53(4) of the Amendment Act required the Tribunal to make rules to ensure section 53(3) applications be dealt with in an expeditious manner.

After December 31, 2008 the subject-matter of a complaint that was not finally dealt with by the Commission, withdrawn or settled may be brought to the Tribunal as an application made under section 53(5) of the Code. The Tribunal may accept s. 53(5) applications between January 1 and June 30, 2009.

These rules for transitional applications, amended as of January 1, 2009, confirm and continue the rules of procedure previously established for applications made to the Tribunal under s. 53(3) of the Code and establish a process for applications made under s. 53(5) of the Code. The process for dealing with applications made under s. 53(5) more closely mirrors the process established for new applications filed under section 34 of Part IV of the amended Code.

4This Application properly falls under s. 53(5), which is the “option” referred to in the Commission correspondence cited by the applicant. Therefore, it must be made following the Transition Rules.

5The Tribunal will transfer this file to the Registrar – Transition, who will assign the file a new file number. The applicant’s representative’s attention is directed to the “Transition Applications” section of the Tribunal’s website, which contains the rules, forms and guides relating to s. 53(5) Applications. Within two weeks of the date of this decision, the applicant shall deliver to the respondent and file with the Registrar -- Transition an amended Application, using Form TR-1. The matter shall proceed under the process contained in the Rules of Procedure for Transitional Applications.

6I am not seized of this Application.