Carosi v. Toronto (City), 2009 HRTO 702

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Carosi

Applicant

-and-

City of Toronto, Andrew Weretelnyk, Anna Kinastowski, Diana Dimmer and Neil Zaph

Respondents

AND B E T W E E N:

Claudio Carosi

Applicant

-and-

City of Toronto, Andrew Weretelnyk, Anna Kinastowski, Diana Dimmer and Neil Zaph

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: May 28, 2009

Citation: 2009 HRTO 702

Indexed As: Carosi v. Toronto (City)

1These are two Applications T-0820-08 and T-0821-08 filed December 29, 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 corresponding complaint numbers are SBHE-75NlQC and SBHE-75NLHG. For both Applications, identical materials were filed in the underlying complaints and are briefly summarized as follows:

The applicants, husband and wife, allege discrimination on the grounds of age, ethnic origin, place of origin, and race in the areas of goods and services, accommodation, contract, and employment. The applicants allege that the discrimination arose when they attempted to recoup payment due for work that they completed for the City of Toronto.

2The respondents have alleged in the Response to both Applications that all or part of the Applications are outside the jurisdiction of the Tribunal because the Ontario Human Rights Commission (the "Commission") has already dismissed the complaints which underlie the present Applications and the complainants chose not to make a request for reconsideration. Alternatively, the respondents submit that the Tribunal should exercise its authority under section 45.1 of the Code to dismiss the Applications on the basis that the Commission has already dealt appropriately with the substance of the Applications.

3The respondents state that the complaints underlying these Applications were dismissed by the Ontario Human Rights Commission on June 25, 2008 and neither of the applicants made a request for reconsideration.

4The applicants state that they both received correspondence from the Commission on or about July 8, 2008. Maria Carosi, the applicant in T-0820-08 states that she received a letter from the Commission advising that it had made a decision concerning her Complaint and a blank request for reconsideration form. I note that the letter provided by the applicant is addressed to Mr. Villella, the applicants' representative. Ms. Carosi states that she did not receive a decision or any reasons for the decision of the Commission. Mr. Carosi, the applicant in T-0821-08 states that he only received a blank application for reconsideration from the Commission. It is not clear from the material filed whether or not the applicants' representative received the decisions of the Commission in respect of the two complaints. I note as well that neither applicant states that they were unaware of the nature of the Commission's decision.

5The applicants both state that they contacted the Commission at various times after receiving their packages from the Commission, but no decisions or reasons for decision were ever sent to them.

6On July 17, 2008, both applicants wrote identical letters to the Commission in respect of their individual complaints as follows:

This letter services to advise that I have elected to instead deal with this matter at the Human Rights Tribunal of Ontario as per section 53(3) of the Act (sic). Please take no procedural actions in this matter.

I have received your package for reconsideration on July 8, 2008 and I have chosen instead to exercise my rights to deal with this matter at the Human Rights Tribunal via the Transition Application Process.

The Human Rights Tribunal of Ontario will be forwarding the appropriate documentation regarding this to the Ontario Human Rights Commission.

7No reconsideration requests were filed with the Commission. As noted above, the instant Applications were filed with the Tribunal on December 29, 2008.

8The applicants also state, based on the letters from the Commission provided by the respondents, that the Commission appears to have made no decision in respect of the complaints as they relate to the individual respondents Neil Zaph and Diana Dimmer. The respondents state that the Commission had never processed either complaint as it relates to these individual respondents. The respondents indicate that there may be correspondence from the Commission clarifying this matter.

9Written submissions were requested of the parties. The applicants object to what they state was a late delivery of the respondents' submissions to them. The respondents' submissions are dated May 20, 2009 and were sent to the Tribunal by email on May 21, 2009. For a number of reasons the respondents did not deliver a copy of their submissions to the applicants' representative until shortly after business hours on May 22, effectively not until Monday, May 25. There is no prejudice resulting from the respondents' delay in delivery of their material the applicants' representative and I have considered them in coming to the conclusions below.

10The relevant portions of sections 53 of the Code provide:

(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)

11I find based on the material before me that the complaints underlying these two Applications were not continued within the meaning of section 53(3) of the Code. I find that the applicants were both aware that the Commission had made a decision to not refer their complaints to the Tribunal. The applicants' identical July 17 letters declining to request reconsideration make no sense otherwise. I find that, despite their advising the Commission that they were not intending to seek reconsideration but rather were transferring their complaints to the Tribunal, the applicants did not do so for another five months. This is well beyond the time for a timely reconsideration request. As such when these Applications were filed with the Tribunal the complaints were no longer continued as the Commission had dealt with them and the applicants had declined to request reconsideration.

12As regards the applicants' assertion that the Commission's decision of June 25, 2008 did not deal with the complaints as they related to respondents Zaph and Dimmer, the respondents state that the Commission chose not to "process" the complaint as it relates to those respondents. There is limited material before me that would support that submission, nor have the applicants addressed this issue in their submissions. Accordingly, I direct that the parties provide their submissions including any documents they are relying upon according to the following schedule:

a. The respondent shall deliver and file their submissions including any documents they are relying upon within 20 days of the date of this decision.

b. The applicants shall deliver and file their submissions including any documents they are relying upon within 10 days of their receiving the respondents' material.

13The Applications as they relate to the respondents City of Toronto, Andrew Weretelnyk and Anna Kinastowski are dismissed.