Salvador Vizcaya v. University of Toronto and Corey Comely, 2009 HRTO 526

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Salvador Vizcaya Applicant

-and-

University of Toronto and Corey Comely Respondents

DECISION

Adjudicator: Kaye Joachim Date: April 29, 2009 Citation: 2009 HRTO 526 Indexed as: Vizcaya v. University of Toronto

WRITTEN SUBMISSIONS BY

Salvador Vizcaya, Applicant ) On His Own Behalf

University of Toronto and Corey Comely, Respondents ) Sari L. Springer, Counsel

Introduction

1This is an Application filed December 10, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (“Commission”) on February 18, 2004 and abandoned upon the filing of the current Application.

2The respondents argue that the applicant may not file the present Application because the complaint upon which the Application is based was dismissed by the Commission and the Commission upheld its decision to dismiss the complaint on April 25, 2007.

3This Decision is based upon the written submissions filed by the parties.

Decision

4A person who filed a complaint with the Commission prior to June 30, 2008 may only file an application under Section 53 if the complaint was “continued” at the Commission. Section 53 of the Code provides:

(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) 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. (emphasis added).

5The Commission issued a decision dismissing the complaint and the applicant (then the complainant) made a request for reconsideration. On April 25, 2007, the Commission rejected the request for reconsideration and upheld its original decision not to refer the complaint to the Tribunal. The Commission advised the applicant that its decision was final, that there were no further steps within the Code’s processes, and that the file would be closed. Thus, the complaint underlying the present Application was not “continued” at the Commission at the time the applicant made the present Application.

6Accordingly, the applicant may not file the present Application under section 53 of the Code and the Application is dismissed.