Junior Smith v. Astley Gilbert Limited, 2009 HRTO 699

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Junior Smith

Applicant

-and-

Astley Gilbert Limited, Wayne Wilbur, John Rozinger, Adrian Royer, Warren Eade, Scott Baldwin, Charles Triolo and John Eslamian

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: May 27, 2009

Citation: 2009 HRTO 699

Indexed as: Smith v. Astley Gilbert

WRITTEN SUBMISSIONS BY

Junior Smith, Applicant ) self-represented

Astley Gilbert Limited, Wayne Wilbur, )

John Rozinger, Adrian Royer, )

Warren Eade, Scott Baldwin, ) Betty P. Psarris, Counsel

Charles Triolo and )

John Eslamian, Respondents )

Introduction

1This is an Application filed December 22, 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 Tribunal sought information and submissions from the parties and the Ontario Human Rights Commission (the “Commission”) on the status of the underlying complaint at the Commission. This Decision is based on the parties’ written submissions.

3The 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 on June 9, 2008. On July 16, 2008, Commission staff 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.

4The Commission closed the matter on July 15, 2008 with the status “withdrawn”. No formal complaint was filed or served on the respondents.

5The applicant does not dispute the above factual assertions by the Commission.

6The 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.

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, without prejudice to the applicant’s right to file a new Application under Part IV of the Code.

9If the applicant files a section 34 application, any of the parties may write to the Registrar-Transition, copied to each other and the Registrar for new applications, Richard Hennessy, and ask that some or all of the documents filed in respect of the section 53(3) Application be transferred to the s.34 application file thus avoiding the need to resubmit the voluminous materials filed in this matter.