Glaze v. Woodbine Entertainment Group, 2009 HRTO 485

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hilka Glaze

Applicant

-and-

Woodbine Entertainment Group, Sheila Galloro, Veena Rampersad and Gord Canning

Respondents

INTERIM DECISION

Adjudicator: Ailsa Jane Wiggins

Date: April 28, 2009

Citation: 2009 HRTO 485

Indexed as: Glaze v. Woodbine Entertainment Group

AppearanceS BY

Hilka Glaze, Applicant ) Cecil Norman, ) Representative

Woodbine Entertainment Group ) Sheila Galloro and ) Brian O’Byrne, Counsel Veena Rampersad, Respondents )

No one appearing for the respondents Gord Canning or Christine Nadeau

Introduction

1This Interim Decision deals with a jurisdictional issue regarding an Application filed on September 4, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and the applicant’s failure to serve two of the personal respondents.

2The applicant served the personal respondents Christine Nadeau and Gord Canning by mailing a copy of the Application to them at the premises of Woodbine Entertainment Group. Woodbine Entertainment Group advised both the applicant and the Tribunal that Christine Nadeau and Gord Canning have not worked there for over a year.

3On September 23, 2008, Woodbine Entertainment Group and the personal respondents Sheila Galloro and Veena Rampersad (the “Served Respondents”) requested that mediation be deferred until after the Tribunal considered their Request for early dismissal on the basis that the Tribunal has no jurisdiction to hear the Application because the Ontario Human Rights Commission (the “Commission”) had made a final decision not to refer the applicant’s complaint to the Tribunal. The letter from the Commission informing the applicant of its decision was dated August 7, 2008. The applicant filed a Request for Reconsideration under section 37 of the old Part IV of the Code on August 15, 2008. The Served Respondents made submissions on the Request for Reconsideration on September 3, 2008. As stated above, the Tribunal received the section 53(3) Application on September 4, 2008.

4The Served Respondents filed their Response to the Application on October 6, 2008.

5In an Interim Decision, 2008 HRTO 156, the Tribunal directed Woodbine Entertainment Group to provide the applicant and the Tribunal with the last known addresses for Christine Nadeau and Gord Canning, cancelled the mediation scheduled for December 10, 2009, and ordered the parties to provide additional information and submissions on the jurisdictional issue raised by the Served Respondents.

6On October 15, 2008, counsel for Woodbine Entertainment Group provided the Tribunal and the applicant’s representative with the last known addresses for Christine Nadeau and Gord Canning.

7On November 21, 2008, in response to the Interim Decision referred to above, counsel for the Served Respondents wrote to the Tribunal setting out his submissions regarding the jurisdictional issue. He asked that the Tribunal dismiss the Application because another proceeding, the proceedings before the Commission, had appropriately dealt with the substance of the Application and that the applicant’s complaint was not a continued complaint, which could be abandoned by her and transferred to the Tribunal. Counsel for the Served Respondents argued that the applicant’s reconsideration request failed to properly address any of the criteria required to reverse a decision of the Commission, was an attempt by the applicant to get around the transition rules and keep her complaint alive, and that to allow her to re-litigate her claim at the Tribunal would be an abuse of process.

8The representative for the applicant wrote to the Tribunal on December 8, 2008 stating that he would not be responding to the Served Respondent’s submissions and that he had served Christine Nadeau and Gord Canning but Christine Nadeau’s package had been returned to him. Mail to Christine Nadeau from the Tribunal has also been returned. Gord Canning has not responded to the Tribunal or the parties.

9By letter dated December 2, 2008, the Tribunal advised the parties that oral submissions were required and suggested possible dates for a case resolution conference to hear the jurisdictional issue. The parties informed the Tribunal of their availability and by letter dated December 8, 2008 the Tribunal advised that a mediation date had been set for February 5, 2009 at 1:30 p.m. On January 6, 2009, the Tribunal wrote to the parties correcting the letter of December 8, 2008, confirming that the date set was for a case resolution conference, not mediation.

10At the beginning of the Case Resolution Conference on February 5, 2009, I confirmed its purpose was to hear the Served Respondents’ motion to dismiss the Application on the basis that the Tribunal lacked jurisdiction.

11Before asking counsel for the Served Respondents to make his submissions, I discussed with the parties the Tribunal’s concern that the personal respondents Christine Nadeau and Gord Canning had not been properly served.

12In his submissions on the jurisdictional issue the Served Respondents’ counsel did not pursue the argument that the applicant’s complaint was not a continued complaint. While there was little jurisprudence on the issue when the motion was originally made, there had by February 5, 2009 been at least two decisions of the Tribunal on the question whether complaints in the Commission’s reconsideration process can be transferred to the Tribunal. In Zavadsky v. Ontario (Education), 2008 HRTO 383 and Saxon v. Amherstburg Police Services Board, 2008 HRTO 395, the Tribunal found that complaints that were in the Commission’s reconsideration process were continuing complaints which could be abandoned and transferred to the Tribunal.

13The Served Respondents’ counsel therefore limited his oral argument to section 45.1, that the Tribunal should dismiss the Application because the Commission had appropriately dealt with the substance of the Application.

14After hearing the submissions of the Served Respondents’ counsel regarding the jurisdictional issue, I asked the applicant’s representative for his submissions. Only then did he announce that he had attended the Tribunal’s offices that day for mediation, not a case resolution conference. He said that he had not received the Tribunal’s letter to the parties of January 6, 2009, which corrected the letter of December 8, 2008 and stated that the date set was for a case resolution conference, not mediation. Given that the parties had both suggested dates for a case resolution conference and that the Served Respondents received the Tribunal’s letter of January 6, 2009 correcting the error, I find it difficult to believe that the applicant’s representative did not know that he was to attend on February 5, 2009 for a case resolution conference. In any event, I asked the applicant’s representative to respond to the Served Respondent’s submissions as best he could and gave him an opportunity to make written submissions as well. I also gave counsel for the Served Respondents the opportunity to provide written submissions in reply.

15In his oral submissions the applicant’s representative said that the applicant’s complaint was a continuing complaint, which she was entitled to abandon and transfer to the Tribunal. In response to the Served Respondents’ argument that the Tribunal should dismiss the Application under section 45.1 of the Code because the Commission had appropriately dealt with the substance of the Application, the applicant’s representative stated that the Commission was not a different forum.

16The applicant’s representative filed his written submissions with the Tribunal on February 9, 2009. They deal with the continuing complaint argument that the Served Respondents’ counsel clearly abandoned at the Case Resolution Conference on February 5, 2009. They do not address the Served Respondents’ argument that the Tribunal should dismiss the Application under section 45.1 of the Code because the Commission had appropriately dealt with the substance of the Application. I am troubled by the applicant’s representative’s apparent lack of preparation. He was not prepared for the Case Resolution Conference and his written submissions do not respond to the Served Respondents’ argument.

17The Served Respondents’ counsel filed his written reply on February 17, 2009. In it he confirms his abandonment of the continuing complaint argument and reiterates his section 45.1 argument. He also notes that the applicant’s representative did not respond to his section 45.1 argument.

Decision

Failure to Serve Certain Personal Respondents

18As stated above, counsel for Woodbine Entertainment Group provided the Tribunal and the applicant’s representative with the last known addresses for Christine Nadeau and Gord Canning. However, given her lack of Response and the fact that mail addressed to Christine Nadeau is being returned to sender, the Tribunal is not satisfied that Christine Nadeau has been properly served. It is the obligation of the applicant to serve all the respondents with the Application (Form A). It is not the corporate respondent’s responsibility to find the personal respondents for the applicant. Woodbine Entertainment Group has done all that is required of it in this regard. Therefore, Christine Nadeau is removed as a personal respondent.

19In the case of Gord Canning, mail to him is not being returned so it is possible that he has been served but has chosen to ignore these proceedings. The Tribunal shall send a copy of this Interim Decision to Gord Canning by regular mail and courier. If he wishes to participate in this proceeding, a Response must be filed within ten (10) days of the date of this Interim Decision together with an explanation of why it was not filed in accordance with the deadline required by the Tribunal’s Rules. If a Response is not received from Gord Canning by that date, the Tribunal shall proceed to deal with this Application without further notice to him.

Jurisdiction over this Application

Has another proceeding appropriately dealt with the substance of the Application?

20Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

21The Served Respondents’ counsel argued that since the complaint had progressed through the Commission’s processes of fact-finding, mediation and investigation, and the Commission had decided not to refer the complaint to the Tribunal, that meant that another proceeding had appropriately dealt with the substance of the Application and so the Tribunal should dismiss it.

22While I find this argument intriguing, I do not agree with it. As I see it, there are at least two problems with this argument. First, I do not believe that the Commission’s processes constitute “another proceeding” since before the recent changes to the Code they were part of the same process of dealing with a human rights complaint. In my view, “another proceeding” in section 45.1 of the Code refers to a proceeding before a body other than the Commission. Secondly, section 45.1 should be interpreted in the context of the Code as a whole, particularly the transitional provisions. As the Tribunal has stated before in Zavadsky, supra, and Saxon, supra, the Code could have provided that complaints in the reconsideration process could not be abandoned and transferred to the Tribunal but the Legislature apparently chose not to do so. Having found that complaints in the Commission’s reconsideration process are continued complaints that may be abandoned and transferred to the Tribunal, it would be inconsistent with the wording of the transitional provisions of the Code and the intention of the Legislature to accept jurisdiction over those complaints only to dismiss them on the basis that the Commission had decided not to refer them to the Tribunal.

Abuse of Process

23The Served Respondents’ counsel submitted that, in light of the Commission’s decision to dismiss the complaint, the applicant’s decision to abandon her complaint at the Commission and transfer it to the Tribunal under section 53(3) of the Code is an abuse of process. He argues that the reconsideration request was nothing more than a sham, an attempt to get a “second kick at the can”.

24The Legislature could have decided that the complaints dismissed under section 36(2) of the old Part IV of the Code could not be abandoned and transferred to the Tribunal. Instead, it chose to provide a transitional scheme whereby any complaint in which the Commission maintained the authority to consider whether a referral to the Tribunal was appropriate, could be abandoned and become the subject of an Application to the Tribunal.

25The applicant’s ability to keep the complaint alive by applying for reconsideration under section 37 of the old Part IV of the Code and then transferring it to the Tribunal may seem unfair to the Served Respondents. I sympathize with that view. However, as I have said, the wording of the Code does not preclude that course of action. Only when the time for seeking reconsideration has passed or the Commission declines to refer the complaint after reconsideration can the complaint be said not to be a “continuing” complaint for the purposes of the transition provisions.

26For these reasons, I find that this Application is within the Tribunal’s jurisdiction.

Next Steps

27The Rules Governing Section 53(3) Applications contemplate that the first step in processing section 53(3) applications is mediation. The parties are directed to contact the Registrar-Transition, within ten days of the date of this Interim Decision, if they wish to participate in mediation. If a party declines mediation or fails to contact the Tribunal within that time a date will be set for a Case Resolution Conference on the merits of the Application.