HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Lewis

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Re/Max Rouge River Realty Ltd., David Pearce, Melody Pearce, and Paul Etherington

Respondents

DECISION

Adjudicator: David A. Wright

Date: July 13, 2010

Citation: 2010 HRTO 1525

Indexed as: Lewis v. Re/Max Rouge River Realty

Written submissions BY

Ontario Human Rights Commission ) Prabhu Rajan, ) Counsel

Re/Max Rouge River Realty Ltd., David Pearce, ) David Pearce, Paul Etherington and Melody Pearce, ) Paul Etherington, and Respondents ) Melody Pearce

INTRODUCTION

1This Decision involves a question of statutory interpretation. The issue is whether the Ontario Human Rights Commission (“Commission”) “referred” a complaint to the Human Rights Tribunal of Ontario within the meaning s. 36 of the old Human Rights Code, R.S.O. 1990, c. H.19, when it made a decision to refer, but did not advise the Tribunal of the decision.

2The essential facts are straightforward. On December 16, 2008, the Commission decided to refer this Complaint to the Tribunal, pursuant to s. 36 of the Code as it stood at the time. The Commission, however, did not write to the Tribunal or the parties to advise of the referral as a result of what it states was an administrative oversight. As of January 1, 2009, the Commission no longer had the statutory authority to refer complaints to the Tribunal as a result of amendments to the Code.

3On April 28, 2010, the Commission sent a letter to the Tribunal indicating that the Complaint had been referred.

4Upon receipt of the referral brief and confirmation by the Commission that it took the position that the referral was valid because a decision had been made prior to December 31, 2008, the Tribunal sent the parties a Notice of Intent to Dismiss dated May 7, 2010, which read in relevant part as follows:

It appears that this referral is outside the Tribunal’s jurisdiction because the Commission’s power to refer complaints to the HRTO ended on December 31, 2008, pursuant to s. 53(2) of the Human Rights Code, and the referral was sent to and received by the Tribunal in 2010.

The parties are directed to deliver to each other and file with the Tribunal written submissions addressing whether this referral falls within the Tribunal’s jurisdiction. In particular, the submissions should address the issue of what steps are necessary, within the meaning of the old s. 36 of the Human Rights Code, for a Complaint to be referred by the Ontario Human Rights Commission to the Human Rights Tribunal of Ontario.

The complainant and Commission must deliver and file any written submissions within 30 days of the date of this letter, and the respondents may deliver and file any written submissions within 45 days of the date of this letter. The complainant and Commission may reply within 60 days of the date of this letter.

5The Commission and the respondents made submissions, and the complainant, who is represented by counsel, did not. Neither the complainant nor the Commission made reply submissions.

RELEVANT STATUTORY PROVISIONS

6Section 36 of the Code as it read prior to June 30, 2008, reads as follows:

36 (1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the Tribunal.

(2) Where the Commission decides to not refer the subject-matter of a complaint to the Tribunal, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefore and inform the complainant of the procedure under section 37 for having the decision reconsidered.

7Section 53 of the Code governs complaints that were before the Commission on June 30, 2008, which was designated as the “effective date” for the amended Code: The old Part IV, including s. 36, was repealed as of June 30, 2008.

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).

(7) Despite anything in the Freedom of Information and Protection of Privacy Act, at the request of a party to an application under subsection (3) or (5), the Commission may disclose to the party any information obtained by the Commission in the course of an investigation.

(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.

8Pursuant to s. 53(2), the Commission continued to have the power to “refer” complaints to the Tribunal until December 31, 2008. Complainants whose complaints were not referred by that date and who had not abandoned the complaint under s. 53(3) had until June 30, 2008 to file an Application at the Tribunal.

ANALYSIS

9I must decide whether the Commission “referred” this Complaint to the Tribunal before its powers to do so ended. The analysis must be guided by the contextual approach to statutory interpretation in which statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42.

10The respondents state that they believed that the complaint had been abandoned until they received the letter from the Commission in April 2010. They question whether a decision to refer was in fact made in 2008.

11The Commission argues that the Tribunal does not have the jurisdiction to nullify a decision of the Commission because of an administrative error, relying upon Payne v. Otsuka Pharmaceutrical Co., (1999), 1999 CanLII 35202 (ON HRT), 36 C.H.R.R. D/480 (Ont. Bd. Inq.) at para. 55; Shepherd v. Ontario Corp. 1110494 (2000), 2000 CanLII 20866 (ON HRT), 38 C.H.R.R. D/284 (Ont. Bd. Inq.) and Arzem v. Ontario (Community and Social Services), 2005 HRTO 11.

12The Commission is correct that the Tribunal cannot review the validity of the Commission’s decision to refer a Complaint. However, I do not accept the interpretation of the word “refer” proposed by the Commission, which presumes that a referral to the Tribunal occurs once the Commission has made the decision to refer. Section 36 speaks of referring “the subject-matter of the complaint to the Tribunal”. In my view, the drafting of this provision, in context, suggests that referral occurs not when the Commission makes the decision to refer but when it does so and sends the matter to the Tribunal.

13This interpretation is supported by the reasoning in Payne. At para. 55, the Board of Inquiry stated:

The Commission has wide discretion in the use of the power to refer. Until such time as it refers and sends the complaint with the letter of referral, the Board has no jurisdiction and is not even aware of the complaint. [emphasis added]

This suggests that the Tribunal has jurisdiction only after a decision to refer has been made and that decision has been communicated to the Tribunal.

14The consequence of the Commission’s interpretation is that the Commission could have made various decisions to refer matters to the Tribunal before December of 2008 and communicated them to the Tribunal at any time after its power to refer ended. This, in my view, does not accord with the Legislature’s intent and would not be a sensible interpretation. I find that to “refer” a matter under s. 36, the Commission had to communicate its decision to the Tribunal before December 31, 2008.

15The Commission also suggests in its submissions that the Tribunal has in other cases proceeded with referred complaints that were sent to it in January 2009. This is not accurate. The Tribunal’s records show that it has received no Commission-referred complaints other than this one since December 31, 2008.

16Finally, the Commission argues that the Tribunal should adopt procedures and practices which offer the best opportunity for a fair, just and expeditious resolution of the merits and should not become “bogged down with procedural formalities and technicalities”. The Tribunal, however, is restricted by its jurisdiction as conferred by the Code. Since the Tribunal has no power to extend the time period in s. 53(2) of the Code, it cannot apply these principles.

17I conclude that as this complaint was not referred to the Tribunal before December 31, 2008, the Tribunal has no jurisdiction to hear it. Accordingly, the Complaint is dismissed.