Jake Kobak v. Aecon Group Inc., Salvator Pitaro and Anthony Sammut, 2010 HRTO 596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jake Kobak Applicant

-and-

Aecon Group Inc., Salvator Pitaro and Anthony Sammut Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: March 18, 2010 File No: TR-0976-09 Citation: 2010 HRTO 596 Indexed as: Kobak v. Aecon Group

WRITTEN SUBMISSIONS BY

Jake Kobak, Applicant ) On his own behalf Aecon Group Inc., Salvator Pitaro and ) Carl W. Peterson, Anthony Sammut, Respondents ) Counsel

1This Application was received by the Tribunal on July 3, 2009. On December 21, 2009, the Tribunal wrote the applicant advising that the Application could not be accepted because it was received after the statutory deadline of June 30, 2009.

2The applicant wrote to the Tribunal seeking to have the Tribunal reconsider its letter. The Tribunal sought submissions from the parties on whether the Application was “made” to the Tribunal by June 30, 2009.

The Legislation

3As 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.

4The 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.

5From 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

6The Tribunal’s Rules of Procedure for Transitional Applications under Sections 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

7On June 19, 2009, the applicant sent the TR-1 form and the original complaint to the corporate respondent and the personal respondent. By letter dated June 21, 2009, the applicant sent the TR-1 form, the original complaint and his letters addressed to the respondents to the Tribunal. The applicant sent this material to the Tribunal by registered mail. The postmark on the applicant’s materials, received at the Tribunal on July 3, 2009, indicates that the material was stamped by Canada Post on June 22, 2009. A letter from Canada Post submitted by the applicant confirms that the applicant submitted the material to Canada Post for registered mail delivery on June 22, 2009 but that it was not delivered until July 3, 2009. Canada Post recognized that this was an “unusually long transmission time.”

Analysis

8Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

9June 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.

10It appears that the intention of the Legislature was to ensure that would-be applicants to the Tribunal decide whether they wish to have an Application heard by the Tribunal and take steps to transfer the matter, before the end of “the six-month period” that is, by June 30, 2009.

11In these circumstances, can this Application, received by the Tribunal on July 3, 2009, be considered an application made “to the Tribunal” by June 30, 2009? I find that it can.

12In this case, the applicant delivered the Application to the respondents in a timely manner and then sent the Application to the Tribunal via registered mail on June 22, 2009.

13Accordingly to the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code, documents are deemed filed with the Tribunal when they are actually received by the Tribunal:

1.15 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.

14With respect to delivery of documents between the parties, the Tribunal Rules provide that documents are deemed to be received within fixed periods.

1.18 Delivery of a document is deemed to have occurred when delivered:

a) by mail, on the 5th day after the postmark date;

b) by fax, when the person sending the document receives a fax confirmation receipt, but if the fax confirmation receipt indicates a delivery time after 5 p.m., delivery will be deemed to have occurred the next day;

c) by courier, on the second day after it was given to the courier;

d) by e-mail, on the day sent or if sent after 5 p.m., delivery will be deemed to have occurred the next day;

e) by hand, when given to the party or when left with a person at the party’s last known address.

15I find that is an appropriate case to waive Rule 1.15. In my view, it would be unduly technical to apply this Rule when, but for the unfortunate delay caused by Canada Post, the applicant had every reason to believe that a document mailed on June 22, 2009 would be received the Tribunal by June 30, 2009. In my view, Rule 1.18 indicates the period of time (five days) that one reasonably expects a document sent by mail to be received.

16Thus, I deem the applicant’s materials to have been filed five days after sent by mail on June 22, 2009 and deemed the material to have been received by June 27, 2009. Accordingly, I conclude that the Application was “made” to the Tribunal by June 30, 2009.

17The Tribunal has assigned a file number to this Application and will proceed to process it. The respondents are directed to file a Response (TR-2) within 35 days of the date of this Interim Decision.