Makhi v. Thunder Bay Police Association, 2009 HRTO 750

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rajoo Makhi

-and-

Thunder Bay Police Association, James Mauro, Patricia Hnatiw and Timo Makelainen

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: June 4, 2009

Citation: 2009 HRTO 750

Indexed as: Makhi v. Thunder Bay Police Association

WRITTEN SUBMISSIONS BY

Rajoo Makhi, Applicant ) On his own behalf

Thunder Bay Police Association, ) Barrie Chercover, James Mauro, Patricia Hnatiw and ) Counsel Timo Makelainen )

Introduction

1This Application was brought to the Human Rights Tribunal of Ontario (the “Tribunal”) under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Section 53(3) is part of the process by which existing and continuing complaints to the Ontario Human Rights Commission (the “Commission”) could be abandoned and brought as applications to the Tribunal under the transitional regime.

2The respondents submit that the applicant may not file the present Application because the complaint upon which it is based was dismissed by the Commission and the Commission upheld its decision to dismiss the complaint before the applicant filed the present Application.

3This Decision is based upon the written submissions filed by the parties.

Chronology

4For the purpose of this Decision, I assume that the following facts asserted by the applicant and established by the documents are true:

• February 1, 2005, the applicant made his original complaint to the Commission.
• April 2, 2008, the Commission mailed its March 26, 2008 decision refusing to refer the complaint to the Tribunal to the parties.
• The applicant requested reconsideration of that decision.
• August 26, 2008, the Commission advised the parties that the reconsideration review was complete and invited them to make submissions on the reconsideration report. The reconsideration report recommended that the Commission uphold the original decision.
• August 2008, the applicant made telephone inquiries to the Tribunal about how to file a transition application and was provided with the form in September 2008.
• In September and October 2008, the applicant telephoned the Tribunal staff to seek assistance in completing the forms. He submitted that because of his “mental and vision problem” he required assistance in completing the forms. He did not get timely advice and assistance from the Tribunal staff.
• November 3, 2008, the Commission mailed its reconsideration decision of October 29, 2008 refusing to refer the complaint to the Tribunal. The Commission letter advised the applicant that the decision is final, that there are not further steps within the Code’s processes and that the file will be closed.
• The applicant had difficulty obtaining current contact information for the respondents and/or their counsel and that affected his ability to deliver a copy of the Application to them and this affected his ability to file the transition application.
• The applicant faxed the Application to the respondents on November 10, 2008.
• November 12, 2008, the applicant filed his Application with the Tribunal which was dated October 27, 2008.
• November 13, 2008, the applicant received the Commission decision closing his file.
• November 21, 2008, the Tribunal acknowledged receipt of the Application dated October 27, 2008 and received November 12, 2008. The Application was incomplete and further information was sought. The missing information was subsequently provided.

5The crucial element of the chronology is that the section 53(3) Application was filed with the Tribunal on November 12, 2008 after the Commission made its reconsideration decision but before the applicant received the Commission decision closing his file.

Law and Analysis

6Section 53(3) governs the process of bringing of an application to the Tribunal based on the subject-matter of a complaint to Commission made prior to June 30, 2008 and which has not been settled, withdrawn or finally dealt with by the Commission prior to January 2009.

7This Decision is made in the context of the transition from the process of having complaints investigated by the Commission and, where appropriate, referred to the Tribunal for hearing and the new regime, which commenced June 30, 2008 where applicants make direct application to the Tribunal.

8The relevant provisions of Section 53 provide as follows:

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. 2006, c. 30, s. 10.

(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.

9The Tribunal has considered on a number of occasions the issue of whether a complaint is “continued” under subsection 53(3) of the Code and at what point the Commission has finally dealt with a complaint, such that an applicant is barred from bringing the complaint to the Tribunal under the transitional provisions. The decisions require the Tribunal to fix a point in time when the applicant’s right to make an application under the transitional provisions of the Code is extinguished.

10In Zavadsky v. Ontario (Education), 2008 HRTO 383; Saxon v. Amherstburg Police Services Board, 2008 HRTO 395; and Moloughney v. Grey Sisters, 2009 HRTO 268, the Tribunal has held that an application brought while a complaint was in the reconsideration process, but before a reconsideration decision was made, is a “continued complaint.”

11In Moloughney, the Tribunal found that:

The applicant’s ability to keep the complaint alive by applying for reconsideration and then transferring it to the Tribunal may seem unfair to the respondents. I sympathize with the view. However, from the wording of the Code, it appears that the Legislature intended to give complainants the option. Only when the Commission has finally dealt with the complaint, either by the Commission declining to refer a reconsidered complaint or after the period for reconsideration of a dismissed complaint has passed, can the complaint be said not to be a “continuing” complaint which the complainant may abandon and transfer to the Tribunal.

12In other cases, the Tribunal has held that an applicant may not file a transitional Application after the reconsideration decision has been issued: Vizcaya v. University of Toronto, 2009 HRTO 526; or after the period for filing a reconsideration request has expired: Firozi v. Ontario (Lottery and Gaming Corporation), 2009 HRTO 155.

13In Firozi, the Tribunal accepted the applicant’s assertion that he made good faith efforts to file a timely request for reconsideration, but failed to do so. Nonetheless, the Tribunal held that the transitional application was barred.

14In my view, in this case the applicant’s complaint with the Commission was finally dealt with on October 29, 2008 when the Commission refused to reconsider its original decision. From that date, there was no continued complaint at the Commission, regardless of when the applicant received notice of the Commission’s decision.

15The applicant suggests that the reason he did not file the Application earlier is that his requests to Tribunal staff for assistance were not answered promptly.

16The Tribunal as an adjudicative body does not provide assistance to parties, other than basic information about our Rules and processes and where further information may be located. Accordingly, the impact, if any, of the timing of the Tribunal staff responses is not relevant to my Decision.

17The applicant also identified his “mental and vision problems” as affecting the timing of the filing of the Application. The Tribunal’s Policy on Accessibility and Accommodation states that the Tribunal wants to ensure that everyone who uses its services can ask for and receive accommodation for their Code-related needs and be able to participate in its proceedings on an equal basis.

18All the Tribunal’s informational materials, forms and notices to the public are available in print and on the Tribunal’s website which follows the W3C Web Content Accessibility Guidelines. All documents created by the Tribunal are also available, upon request, in alternate formats to accommodate disability-related needs.

19In the present circumstances, I am not satisfied that the applicant’s failure to file a timely Application was due to a Code-related reason or the Tribunal’s failure to accommodate a Code-related need.

20The applicant may not file the present Application under section 53 of the Code and the Application is dismissed.