Joe Polito v. Toronto Community Housing Corporation, 2009 HRTO 592

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joe Polito

Applicant

-and-

Toronto Community Housing Corporation,

Pat Milana and Mwarigha Mwarigha

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: May 7, 2009

Citation: 2009 HRTO 592

Indexed as: Polito v. Toronto Community Housing Corporation

WRITTEN SUBMISSIONS BY

Joe Polio, Applicant ) Barbara Adamson,

) Counsel

Toronto Community Housing Corporation, )

Pat Milana and Mwarigha Mwarigha, ) Michele Wong,

Respondents ) Counsel

Introduction

1This is an Application filed November 27, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents initially sought an order deferring the present Application in light of a parallel arbitration proceeding. The Tribunal has received the parties’ written submissions on this issue. However, before a decision on the deferral request was made, the respondents raised the question whether the applicant was permitted to file the present Application under section 53(3) as the underlying complaint attached to the Application had never been served on the respondents and may not have been filed with the Ontario Human Rights Commission prior to June 30, 2008. The complaint was not dated.

3The Tribunal sought information and submissions from the parties and the Commission on the status of the underlying complaint at the Commission. This Decision is based on the parties’ written submissions.

4The Commission responded advising that, in its view, the complaint had not been filed with the Commission. The Commission’s records indicate that the Commission received a completed Complaint Form from the applicant’s representative on April 21, 2008. On May 27, 2008, Commission staff requested the applicant’s representative to re-draft the complaint to provide further details. On June 25, 2008, the Commission staff spoke with the applicant’s representative and advised that the applicant intended to submit an application with the Tribunal rather than resubmit a revised Complaint. By letter of the same date the Commission wrote to the applicant’s representative advising, in part:

The file you initiated with the Ontario Human Rights Commission has been closed as requested. You decided to withdraw your complaint and wait to file a complaint directly with the Human Rights Tribunal of Ontario after June 30, 2008.

5The respondents take the position that the applicant did not file a complaint with the Commission prior to June 30, 2008 and therefore cannot abandon that complaint and file a transitional application under section 53(3). The respondents ask that the Application be dismissed.

6The applicant has indicated that he will withdraw the present Application and file a new Application under section 34 of the Code.

7There appears to be no dispute between the Commission and the parties that, in the circumstances set out above, a complaint was not filed with the Commission prior to June 30, 2008 and therefore, cannot form the basis of a section 53(3) application.

8Accordingly, the applicant may not file the present Application under section 53(3) of the Code and the Application is dismissed.

9If the applicant files a section 34 Application, using Form 1 the form applicable for Applications under Part IV of the Code, the respondents and the applicant may ask that their submissions on deferral be transferred to the section 34 file to eliminate the necessity these submissions be resubmitted.