Cerra v. Thunder Bay Regional Health Sciences Centre, 2009 HRTO 688

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Cerra

Applicant

-and-

Thunder Bay Regional Health Sciences Centre, Barb Kivinen, Bruce Durdle, Bryson McChesnie and Rhonda Fishbein

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: May 26, 2009

Citation: 2009 HRTO 688

Indexed as: Cerra v. Thunder Bay Regional Health Sciences Centre

written submissions by

Janice Cerra, Applicant ) On Her Own Behalf

Thunder Bay Regional Health Sciences Centre, )

Barb Kivinen, Bruce Durdle, Bryson McChesnie ) Shane Smith, Counsel

and Rhonda Fishbein, Respondents )

Introduction

1This is an Application filed February 26, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The complaint underlying the present Application was dated February 10, 2009 and did not bear a file number from the Ontario Human Rights Commission (the “Commission”).

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 from the applicant on May 22, 2008. On July 9, 2008, the Commission wrote to the applicant advising, in part:

We have indicated to you that it is unlikely the Commission will be able to deal with your complaint, and have therefore advised you to file an application directly with the Human Rights Tribunal of Ontario (the “Tribunal”). You have accordingly decided to do so. The file you initiated with the Ontario Human Rights Commission has been closed as requested.

5The Commission closed the matter on July 15, 2008 with the status “withdrawn”. No formal complaint was filed or served on the respondents.

6The applicant does not dispute the above factual assertions by the Commission and asserts she was merely following the instructions of Commission staff in filing the present Application.

7The respondents take the position that the applicant did file a complaint with the Commission prior to June 30, 2008 and subsequently withdrew that complaint, such that the applicant may not abandon that complaint and file an Application under section 53. The respondents take the position that the applicant is also barred from filing an application under section 34 because she filed and withdrew a complaint with the Commission prior to June 30, 2008.

8The relevant provisions of section 53 are set out below:

53. (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)

(8) 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.

9I find that although the applicant submitted a complaint to the Commission prior to June 30, 2008, in the circumstances as described above, the complaint was not “filed” with the Commission within the meaning of section 53(1).

10Accordingly, the applicant may not file the present Application under section 53(5) of the Code and the Application is dismissed.

11Nothing in this Decision precludes the applicant from seeking to file an application under section 34 of the Code in the Tribunal’s new applications stream, using Form 1, the form applicable for Applications under s. 34 of the Code. The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office. Pages 2 – 3 of the Guide set out sources of assistance that may be available to her.