Hartleib v. Gilmore and Juricic Professional, 2010 HRTO 47

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Courtney Hartleib

Applicant

-and-

Gilmore and Juricic Professional Corporation,

Zora Juricic and Edward Gilmore

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 12, 2010

Citation: 2010 HRTO 47

Indexed as: Hartleib v. Gilmore and Juricic Professional

1This Interim Decision addresses whether the Application was made by the June 30, 2009 statutory deadline.

The Legislation

2As of June 30, 2008, the system for enforcing rights under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (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 under Section 53(3) and 53(5) of the Human Rights Code 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

6The Tribunal received an email from the applicant on June 30, 2009 at 11:07 p.m. attaching a Form TR-1, a statement of supplementary information and a statement of delivery (Form C) indicating that the materials had been delivered by email to the respondents and their counsel on June 30, 2009.

7On July 2, 2009, the Tribunal emailed the applicant to confirm receipt of the Application and directed her to delivery a copy of the original complaint to the Tribunal and respondents. The applicant complied with this direction on July 2, 2009.

8The respondents assert that the failure to attach the original complaint to the TR-1 and the delivery to the Tribunal after 5:00 p.m. bars the applicant from proceeding.

Analysis

9Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

10I agree with the respondents that June 30, 2009 is a statutory deadline and I have no discretion to waive or extend that deadline. However, I do have to determine when an application is “made” to the Tribunal and in doing so I have the discretion to waive the Tribunal Rules.

11In my view, an application is made to the Tribunal if an applicant has filed sufficient material with the Tribunal by June 30, 2009 to indicate an intention to make an application. In some cases, the TR-1 form may suffice. In other cases, the original Commission complaint may suffice.

12My discretion to waive the Tribunal Rules is set out in Rule 4.3:

4.3 To ensure the fair, just and highly expeditious resolution of an Application under section 53(3) or section 53(5) of the Code the Tribunal may:

a) vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms;

13In the circumstances of this case, I exercise my discretion to relieve against the technical requirements of Rule 12 regarding the filing of an application. In particular I relieve against the requirement to attach the original complaint to the Form TR-1. There is no question that the respondents already have a copy of the complaint in their possession.

14Rule 1.15 provides that:

Filing is deemed to take place by:

a) fax, on the date automatically imprinted on the document by the Tribunal’s fax machine, but if the fax confirmation receipt indicates a time after 5 p.m., filing will be deemed to have occurred the next day;

b) e-mail, on the date automatically electronically imprinted on the document by the Tribunal’s electronic message delivery system, but if the e-mail confirmation indicates a time after 5 p.m., filing will be deemed to have occurred the next day;

c) hand delivery, courier, or mail, on the date of receipt stamped on the document by the Tribunal.

15I exercise my discretion to relieve against the Rule that a document delivered after 5:00 p.m. is deemed to have been received the next day. In my view, a reasonable interpretation of the Code permits the Tribunal to accept applications received until midnight June 30, 2009.

16I find that the Application against all the respondents was made prior to the statutory deadline.

17The respondents have not indicated an interest in mediation. The Tribunal will contact the parties to set a date for the hearing.