HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenna Wilberforce

Applicant

-and-

Lennox and Addington Family and Children’s Services, The Board of Directors of Lennox and Addington Family and Children’s Services and Greg Moon

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: April 29, 2009

Citation: 2009 HRTO 517

Indexed as: Wilberforce v. Lennox and Addington Family and Children’s Services

[1] The applicant filed an Application, dated November 6, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, sex, sexual solicitation or advances, and reprisal. The Application indicated that a Complaint based on the same facts as the Application was previously filed with the Ontario Human Rights Commission (the “Commission”).

2In response, the respondents made a Request for Early Dismissal of the Application, referring to section 53(8) of the Code which provides:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

3In her Response opposing the Request for Early Dismissal, the applicant provided a copy of a letter dated September 9, 2008, from the Commission which stated, in part, as follows:

You submitted your complaint to the Commission in May 2008. Your complaint was not served to the respondent. In cases where the Commission has not served the complaint to the respondent(s), complainants are being offered the opportunity to withdraw/close the case at the Commission and file the complaint directly with the Human Rights Tribunal of Ontario. Because it would be considered a new case (as it was not served), this would also enable complainants to access legal advice from the Legal Support Centre.

On September 8, 2008, you chose to withdraw your complaint and file directly with the Tribunal. Accordingly, your file has been closed as withdrawn.

The applicant submitted that, for the purposes of section 53(8) of the Code, there is no prior Complaint filed with the Commission.

4The Tribunal invited the parties to provide further written submissions on the Tribunal’s decision in Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160. In response, the respondents requested that, in advance of either party providing further submissions, the Tribunal request that the Commission provide a statement of facts in respect of the applicant’s Complaint with the Commission. The respondents submitted that this procedural step was afforded to the parties in the Tribunal’s decisions in similar cases to date, they wished to have the benefit of the same procedural step, and the Commission has information that is relevant to the issues in dispute between the parties.

5In an Interim Decision, 2009 HRTO 2004, the Tribunal directed the Commission to file and deliver to the parties a statement of facts in relation to the applicant’s Complaint file with the Commission, by March 17, 2009. This direction was made pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure, authorizing the Tribunal to require any person to produce information in order to provide for the fair, just and expeditious resolution of any matter before it. Similar to Patterson, supra, the Tribunal directed that the statement of facts should include information about the filing of the Complaint with the Commission, communications between the applicant and the Commission, communications between the respondents and the Commission, and any other facts related to the processing of the Complaint by the Commission and its apparent withdrawal (subject to mediation privilege). The Tribunal also provided the parties with an opportunity to deliver and file submissions in response, by March 24, 2009.

6The Commission provided a statement of facts on March 17, 2009, indicating that the applicant did not formally “file” a complaint with the Commission regarding the issues contained in her Application, and stated that it was the Commission’s view that section 53(8) of the Code would not apply in the circumstances. The Commission stated that a complaint is not formally filed with the Commission simply because an individual may have sent a filled out complaint form to the Commission.

7With respect to its case processing system, the Commission explained that, in most cases, a potential complainant would contact the Commission, and would be forwarded a complaint form for completion. The Commission’s case management system (CMIS) would automatically generate a file number for the contact and that number would ultimately be assigned to the received complaint. If a completed complaint form were returned to the Commission, it would be entered into CMIS and assigned to intake staff for assessment. A complaint sent with the intention of being “filed”, would first be assessed for accuracy and completeness in order to ensure that the complaint was in “a form” that met the Commission’s approval pursuant to the former section 32(1) of the Code. Once the assessment process was completed, the complaint would be accepted and would be “filed” for the purposes of the Code.

8The Commission explained that, between June and November 2008, individuals whose complaints were in the intake office but had not yet been assessed and, consequently, had not yet been formally “filed” were contacted. Intake staff informed these individuals about the impending changes to the human rights system and that the Commission would not be able to process their complaints before the end of the transition period (i.e. December 31, 2008) and it would be more expeditious for them to file their complaints with the Tribunal. With respect to the applicant, the Commission stated as follows:

In Ms. Wilberforce’s case, Commission staff had such a telephone conversation with her on September 8, 2008. Commission staff spoke to Ms. Wilberforce about changes to the human rights system. Ms. Wilberforce advised Commission staff that she would withdraw her complaint and file an application directly with the Tribunal. Her complaint was not served on any potential respondents. Further, her complaint did not undergo the assessment process required for a complaint to be filed with the Commission.

9On March 20, 2009, the respondents provided a response submitting, inter alia, that the Commission’s statement of facts “is so woefully insufficient as to fail to respond to the Tribunal’s order” and that it was “more in the character of legal submissions.” The respondents requested that the Tribunal order the Commission to provide, without legal argument, the following further information within two weeks, and further extend the parties’ obligation to provide their written submissions for a further five business days after the date the Commission’s further information is received by the parties:

(1) The dates upon which any forms, correspondence, or other documents were received or sent by the Commission in respect of this matter, and copies of said forms, correspondence, or other documents;

(2) Particulars of any and all conversations between Commission staff and the Applicant, or with any other individual in respect of this matter, including detailed specifics regarding what was said in the conversation of September 8, 2008, and any advice, guidance, or direction provided to the Applicant;

(3) Particulars of whatever inquiries, if any, may have been made to the Commission in respect of this matter;

(4) Particulars of any administrative or procedural steps which were taken regarding the Complaint while, before, or after the complaint file was open, including but not limited to the assignment of a file number and any review whatsoever of the contents of the file; and

(5) Copies of any Commission policies, guidelines, or other material which set out the Commission’s practices and procedures with respect to when a Complaint was considered “filed” under the old Part IV of the Code.

The respondents also requested a full copy of the Commission’s file in respect of the Complaint filed by the Applicant (subject to mediation privilege).

10The applicant provided submissions in response to the Commission’s statement of facts on March 23, 2009. The applicant submitted that the respondents’ request for a further extension and that the Commission be ordered to provide additional information and a complete copy of its file is unwarranted, has the aura of a “fishing expedition”, and should be rejected.

11In its earlier Interim Decision, the Tribunal directed the Commission to provide a statement of facts providing information about the processing of the applicant’s complaint. The respondents are now effectively making a request for further information as well as documents from the Commission. The Commission is not a party to this Application, and it appears that the respondents have not copied the Commission with their March 20, 2009 request.

[12] In my view, the Commission’s statement of facts adequately complies with the Tribunal’s direction, and the respondents have provided no basis for ordering further information or production of documents from the Commission. The respondents may have an additional five days from the date of this Interim Decision to provide submissions on the issue of whether this Application is barred by virtue of section 53(8) of the Code, following which the Tribunal may determine the issue or provide further procedural directions.

13I am not seized of this matter.