Herman von Pagenhardt v. Magna International Inc., 2010 HRTO 1105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Herman von Pagenhardt

Applicant

-and-

Magna International Inc.

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: May 18, 2010

Citation: 2010 HRTO 1105

Indexed as: von Pagenhardt v. Magna International

Introduction

1This is an Application received by the Tribunal on April 7, 2010 and filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal returned the Application to the applicant by letter dated April 12, 2010 advising that transitional applications must be received before June 30, 2009.

3The applicant responded, advising that he had sent a letter to the Chair of the Human Rights Tribunal on May 29, 2009.

4The Tribunal sought the assistance of the Ontario Human Rights Commission regarding the status of the complaint form submitted by the applicant. The complaint form appears to be signed and dated February 2, 1989. However, the complaint form bears no Commission complaint number. The Applicant identified his complaint as bearing the case No. 10-071P.

5The Commission responded on April 28, 2010 stating:

As of December 31, 2008 the Commission did not have any active complaints filed under the Human Rights Code by or on behalf of the applicant.

The File No. 10-071P is not a complaint number. The file number 10-071P pertains to inquiries made to the Commission by Mr. von Pagenhardt who was contemplating filing a complaint against Magna International Inc. No complaint within the meaning of the Code, was filed with the Commission by Mr. von Pagenhardt under the file number 10-071P, or any other file number.

There is no record of any activity on the above-noted matter in the Commission’s Computerized Case Management Information System (CMIS) that has been used by the Commission since 1998.

6The applicant was offered an opportunity to make further submissions on whether the Application falls within the jurisdiction of the Tribunal.

7The applicant submitted copies of correspondence indicating that he had communicated with the Commission repeatedly from November 1988 to 1999, seeking to have them initiate a complaint on his behalf against the respondent. By letter dated November 22, 1990 which the Commission advised that they would not be initiating a complaint against the respondents. The final letter from the Commission relating to Case No. 10-071P was dated September 29, 1994 which indicated that in the Commission’s view, the case was closed in January 1990.

8My review of the applicant’s correspondence indicates that, while there are several inconsistencies in the Commission’s responses to the applicant over the years and many inexplicable delays in responding to him, the evidence appears clear that there was no active complaint that was continued within the meaning of section 53 of the Code when the applicant filed the present Application (whether before or after June 30, 2009).

9Section 53 of the Code provides:

(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).

10I find that this Application is not within the jurisdiction of the Tribunal.