HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Teresa DiFalco
Applicant
-and-
Her Majesty the Queen in the Right of Ontario as represented by the Minister of Health and Long-Term Care, Angela Forest, Peter Inokai and Adam Redish
Respondents
INTERIM DECISION
Adjudicator: Andrew M. Diamond
Indexed as: DiFalco v. Ontario (Health and Long-Term Care)
Introduction
1The respondents assert that the complaint before the Ontario Human Rights Commission (the “Commission”) which forms the subject-matter of this Application is not continued within the meaning of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The result, the respondents argue, is that the Human Rights Tribunal of Ontario (the “Tribunal”) does not have jurisdiction to hear this Application.
Facts and Argument
2A review of the following chronology of events is useful in framing the issue raised by the respondents:
2002, the applicant made her original complaint.
September 2007, the parties entered into minutes of settlement by which they agreed to settle both the applicant’s complaint to the Commission and the companion civil suit. The settlement was evidenced by way of minutes of settlement.
February 15, 2008, the applicant brings a second complaint to the Commission alleging that the respondents had not honoured the terms of the minutes of settlement (the “settlement complaint”).
July 14, 2008, the Commission advises the applicant that it “has been unable to resolve the settlement complaint and that the settlement complaint would be presented to the Commission for a decision as to whether or not to refer the settlement complaint to the Human Rights Tribunal of Ontario (the “Tribunal”).
November 24, 2008, the Commission mailed its decision not to refer the settlement complaint to the Tribunal. The cover letter to the decision advised the Applicant that she had 15 calendar days from the date of the letter to file an application for reconsideration if she so wished. No application for reconsideration was filed with the Commission.
December 6, 2008, (12 days from the date of the Commission’s decision) the Tribunal received this Application.
Argument
3The respondents argue that the Tribunal has no jurisdiction to hear the Application as the Commission’s decision was final and therefore it was not a “complaint that is continued” as is required by section 53(3) of the Code.
4The applicant argues that she “took great care to ensure we followed the instruction and guidelines so as to not surrender or jeopardize [the applicant’s] ability to have her concerns heard under section 53(3).” The applicant relies as well on a July 14, 2008 letter from the Commission which states:
Commission staff note that the Complainant [Applicant] could, at the present time, transfer her breach of settlement and reprisal complaint directly to the Tribunal. Indeed, she may do so in either of two ways. She can bring a separate Application at the Tribunal for alleged breach of settlement under the new section 45.9(3) of the Code. In addition, she could apply under the new transition rules to transfer this complaint to the Tribunal using the new expedited procedure under section 53(3) of the Code (…).
5The applicant also relies on information from the Tribunal which says:
At any time between June 30, 2008 and December 31, 2008 an individual who has a continued complaint at the Commission, may choose to abandon their continued complaint, and file an application with the Tribunal under section 53(3) (emphasis added).
6The applicant acknowledges that the Commission’s decision not to refer the case is dated November 24, 2008. The applicant further acknowledges that the Commission advised her that she had 15 days, until December 9, 2008, to request reconsideration. The applicant argues that she elected to submit her section 53(3) Application to the Tribunal during this 15 day period.
Law and Analysis
7This Interim Decision has to be read in the context of the current transitional period between the historic process of having matters investigated by the Commission and, where appropriate, referred to the Tribunal for hearing which is prosecuted by the Commission, and the new regime, where applicants make direct application to the Tribunal and prosecuted by them. As part of the transition process, individuals who had cases before the Commission, which had not had a final resolution, were given the option of abandoning their complaints to the Commission and making the section 53(3) applications to the Tribunal.
8Section 53(3) of the Code states:
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.
9The Tribunal has considered the meaning of “continued complaint” under subsection 53(2) of the Code in three previous decisions: Zavadsky v. Ontario (Education), 2008 HRTO 383; Saxon v. Amherstburg Police Services Board, 2008 HRTO 395; and Moloughney v. Grey Sisters, 2009 HRTO 268. In each of these decisions the Tribunal held that, where the Commission had decided not to refer a case to the Tribunal and the complainant made a timely request for reconsideration, the request for reconsideration “continued the complaint” and as a result those complainant could elect to make a section 53(3) application. In Moloughney, the Tribunal concluded:
The applicant’s ability to keep the complaint alive by applying for reconsideration and then transferring it to the Tribunal may seem unfair to the respondents. I sympathize with the view. However, from the wording of the Code, it appears that the Legislature intended to give complainants the option. Only when the Commission has finally dealt with the complaint, either by the Commission declining to refer a reconsidered complaint or after the period for reconsideration of a dismissed complaint has passed, can the complaint be said not to be a “continuing” complaint which the complainant may abandon and transfer to the Tribunal (emphasis added).
Decision
10The only difference between the facts of this Application and the three decisions cited above is that this Application was made without filing a request for reconsideration but prior to the expiry of the 15 day period for seeking reconsideration. I am satisfied, consistent with the reasoning in Moloughney, that where an application is made within the time for seeking reconsideration it arises out of a “continued complaint” within the meaning of s.53(2). I find no reason or requirement in the transition provisions of the Code to impose a formalistic obligation on an applicant to file a reconsideration request where the right to seek reconsideration is still available as of the date the Application is made to the Tribunal.
11This Application is properly before the Tribunal and the Tribunal has jurisdiction to hear and decide it.
12I am not seized of this matter.
Dated at Toronto, this 27th day of April, 2009.
“Signed by”
Andrew M. Diamond
Member