Mary Naguib v. City of Toronto (Works and Emergency Services), 2009 HRTO 495

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Naguib

Applicant

-and-

City of Toronto (Works and Emergency Services), Maria Mlakar, Bill Forest and Barry Gutteridge

Respondents

INTERIM DECISION

Adjudicator: Andrew M. Diamond

Date: April 27, 2009

Citation: 2009 HRTO 495

Indexed as: Naguib v. Toronto (City)

Introduction

1This Application was brought to the Human Rights Tribunal of Ontario (the “Tribunal”) under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Section 53(3) is part of the process by which existing and continuing complaints to the Ontario Human Rights Commission (the “Commission”) could be abandoned and brought as applications to the Tribunal under the transitional regime.

2On April 15, 2009, I conducted an oral hearing to allow the parties to make submissions on the issue of jurisdiction.

3The respondents submit that the Tribunal does not have jurisdiction to hear this Application as they assert that the Commission has finally disposed of the complaint and, as a result, there is no “continuing complaint” for the Tribunal to deal with.

Facts and Argument

4A review of the following chronology of events is useful in framing the issue raised by the respondents:

• December 8, 2003, the applicant made her original complaint to the Commission.
• August 7, 2008, the Commission mailed its decision of July 29, 2008 refusing to refer the complaint to the Tribunal.
• August 12, 2008, the applicant submitted her request to the Commission to reconsider its decision. It must be noted that the request for reconsideration was within 15 days of the mailing of the Commission’s decision and therefore the request for reconsideration was made in a timely manner.
• August 28, 2008, the applicant made a section 53(3) application to the Tribunal. As part of the section 53(3) application, the applicant abandoned her complaint to the Commission.
• December 16, 2008, the Commission issued its decision on the reconsideration confirming its decision not to refer the complaint to the Tribunal.

5The crucial elements of the chronology are that: (i) the section 53(3) application was made to the Tribunal while the complaint was under reconsideration by the Commission; and (ii) the reconsideration decision was made by the Commission prior to any decision by the Tribunal.

6Section 53(3) is intended to facilitate the bring of an application to the Tribunal based on the subject-matter of a complaint to Commission made prior to June 30, 2008 and which has not been settled, withdrawn or finally dealt with by the Commission prior to January 2009.

7As part of the transitional process, the applicant completed an Application under section 53(3) of the Code (Form A) by which she declared that:

I understand that by filing this Application I am abandoning my Complaint at the Ontario Human Rights Commission. (emphasis added).

8Counsel for the City of Toronto admits that the applicant met her responsibilities for the successfully bringing a section 53(3) application. However, somewhere between the Tribunal and the Commission an administrative error resulted in the Commission being unaware of the applicant’s intention to abandon her complaint to the Commission. As a result, the Commission continued to reconsider its original decision not to refer the complaint to the Tribunal.

9The respondents argue that the decision of the Commission on the reconsideration is, despite the section 53(3) Application to the Tribunal, a final decision of the Commission; and as a result, there is no longer a “live or continuing complaint” for the Tribunal to consider. The effect of there no longer being a “continuing complaint”, the respondents argue, is that the Tribunal lacks the jurisdiction to resurrect it.

10Furthermore, the respondents argue that there is nothing in the Code that would allow the Tribunal to proclaim the decision of the Commission a nullity or void ab initio. Nor, they argue, does the Tribunal have the power to review a decision of the Commission and, as a result, it lacks the jurisdiction to make a determination on the merits of the Application, as another body (the Commission) has already rendered a final determination on the same facts.

11The applicant (with the aide of a translator) submitted that it was not her mistake that resulted in the Commission continuing to consider her request for reconsideration when she had abandoned her complaint to the Commission and had brought her Application to the Tribunal, and that she should not be prejudiced by this administrative error.

Law and Analysis

12This 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.

13Section 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.

14The issue which Tribunal has grappled with on a number of occasions is: whether a complaint undergoing reconsideration by the Commission is “continued” under subsection 53(2) of the Code. In Zavadsky v. Ontario (Education), 2008 HRTO 383; Saxon v. Amherstburg Police Services Board, 2008 HRTO 395; and Moloughney v. Grey Sisters, 2009 HRTO 268, the Tribunal has considered whether there is a “continued complaint” in cases where the applicant had filed a timely request for reconsideration and then completed a section 53(3) application. In each of these cases 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 complainants could elect to make a section 53(3) application. In Moloughney, the Tribunal found that:

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.

15The only difference between this Application and the decisions cited above is that, here, for whatever reason, the Commission was unaware that the complaint had been abandoned and proceeded to make its decision on the reconsideration. That was an administrative error. As the applicant argues, this was not her fault and should not change the result.

Decision

16The applicant had the right to abandon her complaint to the Commission and bring an application to the Tribunal under section 53(3) of the Code. The applicant did everything that was required of her. At the time the Commission’s reconsideration decision was made the complaint had been abandoned and there was nothing before the Commission to reconsider. In the circumstances, I am satisfied this Application is properly before the Tribunal and the Tribunal has jurisdiction over it.

17I am not seized of this matter.