HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ligia Reyes
Applicant
-and-
Andrea Seepersaud and Fatena Akache
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Date: May 20, 2010
Citation: 2010 HRTO 1145
Indexed as: Reyes v. Seepersaud
1This Application was filed June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision deals with a request by the personal respondent, Fatena Akache, that the Tribunal decline to deal with the Application against her on the basis that it is not a continued complaint within the meaning of section 53(5) of the Code as the Commission had already dealt with the merits of the complaint. In particular, Ms. Akache asserted that she attended mediation at the Commission in 2007 and she never heard anything further from the Commission.
3Section 53 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)….
(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.
4These provisions dealt with the complaints within the Commission system during the transition from the old Code to the new Code. Essentially, only open or continued complaints could be the subject of a transitional application. Thus, the Tribunal has no jurisdiction to deal with a complaint filed with Commission prior to June 30, 2008, if the Commission has dealt with the merits of the complaint (i.e. by referring the complaint to the Tribunal or by dismissing the complaint) or if the complaint was withdrawn or settled or otherwise closed.
5In this case, the Commission did not deal with the merits of the complaint. The respondent Akache did not submit any Commission decision, or letter of withdrawal of settlement or letter of closure by the Commission.
6She merely asserts that following an unsuccessful mediation in 2007 she did not hear further from the Commission. That is not an indication that the Commission dealt with the merits of the complaint. It may be that the complaint was being investigated or was in the queue for investigation or it was pending a decision by the Commission. Whatever its status, it was still an open complaint at the Commission at the time the applicant abandoned the complaint and filed the present Application, as she was entitled to do under the transitional provisions of the Code.
7The respondent Akache’s request for dismissal of the Application against her is denied.
Dated at Toronto, this 20th day of May, 2010.
”signed by”
Kaye Joachim
Alternate Chair