Siddiqui v. Global Payments, 2010 HRTO 1193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Azher Siddiqui

Applicant

-and-

Global Payments Incorporated, Jeffery Lockabaugh, Sheila Hawes, Ron Valley Rob Scott and Bruce Nanton

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: May 27, 2010

Citation: 2010 HRTO 1193

Indexed as: Siddiqui v. Global Payments

1This Application was received by the Tribunal on April 8, 2010. The Tribunal sought the parties’ submissions on whether the Application could be accepted as it was received after the statutory deadline of June 30, 2009.

The Legislation

2As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Ontario Human Rights Commission (the “Commission”) decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal. The Legislature made provision for complainants who had filed complaints with the Commission prior to June 30, 2008 to file transitional Applications with the Tribunal during the period June 30, 2008 to June 30, 2009.

3The transition provisions are set out in section 53:

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.

(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.

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

(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.

(6) The new Part IV applies to an application made under subsections (3) and (5) ….

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

4From June 30, 2008 until December 31, 2008, applicants could file section 53(3) applications and from January 1, 2009 to June 30, 2009, applicants could file section 53(5) applications with respect to “continued” complaints. The statutory deadline for making a transitional application is June 30, 2009.

The Tribunal’s Rules

5The Tribunal’s Rules of Procedure for Transitional Applications set out the steps required to file a transitional application:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and,

b) the Commission complaint file number.

The Chronology

6On June 15, 2009, the Tribunal received a Response to an Application (TR-2) from the respondents. The Tribunal checked its records (fax, email, regular mail) and was unable to match the TR-2 to an Application.

7On March 8, 2010, the Tribunal wrote to the respondents advising them that the Tribunal had not received an Application from the applicant prior to June 30, 2009.

8On April 8, 2010, the applicant’s counsel submitted a copy of the transitional Application that she had instructed the applicant to mail to the Tribunal prior to June 30, 2009.

9The applicant’s counsel advised the Tribunal that she had instructed the applicant to send a copy of the Application to the Tribunal and to the respondents’ counsel. She advised that the applicant had mailed the Applications as instructed and was mystified why the Tribunal had not received it.

10There is no dispute that the respondents did receive the Transitional Application prior to June 30, 2009

Analysis

11Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

12June 30, 2009 is a statutory deadline and I have no discretion to waive or extend that deadline: Cheong v Ontario, [2004] O.J. No. 378.

13I am not satisfied that the Application was made to the Tribunal before June 30, 2009. In my view, the fact that counsel instructed the applicant to send the transitional Application to the Tribunal is not evidence that the applicant did so. The applicant did not submit any form of supporting evidence such as a letter to the Tribunal enclosing the Application, notes relating to counsel’s instruction, or a statement from the applicant explaining when and where and how he sent the Application to the Tribunal. In these circumstances, I am not satisfied that the applicant made a transitional Application to the Tribunal prior to June 30, 2009. The Tribunal has no authority to accept the present Application and it is dismissed.