minicounsel

Abul Kalam v. The Brick Warehouse L.P., 2009 HRTO 734 — HRTO | minicounsel | minicounsel

June 4, 2009

Abul Kalam v. The Brick Warehouse L.P., 2009 HRTO 734

Case Summary

The applicant filed an application under section 34 of the Human Rights Code. The Tribunal found that the allegations related to a complaint previously filed with the Ontario Human Rights Commission. Pursuant to section 53(8) of the Code, the Tribunal cannot accept a section 34 application based on a prior Commission complaint. The application was dismissed, with instructions that the applicant must file a transitional application under section 53(5) if he wishes to pursue the claim.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abul Kalam

Applicant

-and-

The Brick Warehouse L.P., Barry Cohen, Grace Gao and Mario Diano

Respondents

decision

Adjudicator: Brian Eyolfson

Date: June 4, 2009

Citation Number: 2009 HRTO 734

Indexed As: Kalam v. Brick Warehouse

[1] The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). It relates to a complaint that was filed at the Ontario Human Rights Commission (the “Commission”). The Application has not been delivered to the respondent.

[2] The Commission wrote to the applicant on October 31, 2008, to explain the changes to the Code. The Commission advised the applicant that he had the option of dropping his complaint with the Commission and filing an application with the Tribunal instead.

[3] The Code was amended effective June 30, 2008. Section 34 of the Code pertains to new applications that are filed after June 30, 2008 and that do not involve matters that were the subject of a previous complaint to the Commission. Pursuant to section 53(8) of the Code, the Tribunal cannot accept or consider a section 34 application based on a prior Commission complaint.

[4] Section 53 of the Code provides that persons with complaints at the Commission that were not finally dealt with by the Commission, withdrawn, or settled prior to June 30, 2008 may abandon the complaint and file an application under the transitional provisions of the Code. Section 53(5) provides a person with a complaint continuing at the Commission as of December 31, 2008 with the option of making an application based on the subject matter of that complaint to the Tribunal before June 30, 2009. These applications are referred to as Transition Applications. They are made using a different application form (Form TR-1) and are subject to different Rules.

[5] The Tribunal Registrar wrote to the applicant on April 7, 2009 to advise that the Tribunal could not deal with the Application because it appeared to be based on a prior Commission complaint and thus ought to be made as a section 53 application. The applicant was given the opportunity to make submissions explaining why he felt that the Application was properly filed under section 34. He has not done so.

[6] On the basis of the information provided with the Application, it is clear that the allegations concern matters that relate to the complaint previously filed with the Commission. As such the Tribunal has no power to decide the Application under s.34 of the Code and it is dismissed.

[7] If the applicant wishes to pursue his claim, he must file an Application under section 53(5) of the Code with the Tribunal before June 30, 2009. The section 53(5) Application form, together with the rules, forms and guides relating to section 53(5) Applications are available from the Tribunal’s website or the Registrar – Transition. The Application form is found under the “forms” heading on the Transition page of the website.

Dated at Toronto, this 4^th day of June, 2009.

“Signed by”

Brian Eyolfson

Vice-Chair