HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Lee

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March 19, 2010

Citation: 2010 HRTO 604

Indexed as: Lee v. Minister of Community Safety and Correctional Services

1This Application was received by the Tribunal on June 29, 2009. The respondent filed a Request for Order during Proceedings seeking to have the Application dismissed as filed after the June 30, 2009 statutory deadline. The applicant did not file a response to Request for Order, despite being granted an extension of time to do so. The Tribunal declined to grant a second request for extension.

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 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

6On June 29, 2009, the Tribunal received a section 53(5) application (TR-1) by fax from the applicant. No Commission complaint was attached, nor did the applicant file a statement of delivery (Form C) indicating that the Application and the original complaint had been delivered to the respondent.

7On September 16, 2009, the Tribunal wrote to the applicant confirming receipt of the Application and advising that it was incomplete and advising the steps the applicant needed to take to complete the Application. The Tribunal did not send this letter of confirmation of receipt of an incomplete Application to the respondent because the applicant had not included the respondent’s name or contact information in his Application.

8On October 7, 2009, the applicant sent the Tribunal the TR-1 (the name of the respondent still missing), the original complaint (which named the respondent) and a statement of delivery confirming that he had delivered theTR-1 to the respondent by fax on October 7, 2009.

9On October 16, 2009, the Tribunal advised the applicant that his application was still not complete, as it was not clear whether he had delivered the original complaint to the respondent, along with the TR-1 and information identifying the respondent was missing from the TR-1. A copy of this letter and the Tribunal’s letter of September 16, 2009 was sent to the respondent.

10On November 30, 2009, the respondent filed a Request for Order during Proceedings (TR-4) seeking the dismissal of the Application on the basis that the applicant had not made a timely application to the Tribunal before the June 30, 2009 statutory deadline.

11The respondent asserted that they received the TR-1 from the applicant by fax on October 14, 2009, and not on October 7, 2009 as stated in the applicant’s Statement of Delivery. They also note that page 4, the page identifying the respondent was missing and/or not completed and that the applicant had never provided a copy of the original complaint as directed by the Tribunal.

Analysis

12Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

13I agree with the respondent 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.

14In 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 his or her intention to make an application. In some cases, the TR-1 form may suffice. In other cases, the original Commission complaint may suffice. Generally, the Tribunal has held that the failure to properly deliver the application to the respondent prior to making the application to the Tribunal will not be a basis for finding the Application is out of time.

15My 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;

16In the circumstances of this case, I have exercised my discretion to relieve against the technical requirements of Rule 12 regarding the filing of an application. Having regard to the fact that the respondent was aware of the complaints since 2005 and received the TR-1 Application on October 14, 2009, I find that the respondent has not suffered prejudice in learning of the transitional application three and a half months after the statutory deadline. I also exercise my discretion to waive against the technical requirement that the applicant is required to identify the name of the respondent in the Form TR-1. The respondent knows it is the respondent and the applicant’s failure to include that information on the Form TR-1 causes it no prejudice. Similarly, I exercise my discretion to waive against the technical requirement that the applicant attach a copy of the original complaint to the Application. The applicant did provide the Complaint number and the respondent has had possession of the original complaint since 2005. The applicant’s failure to attach a copy of the original complaint, which was delivered to the respondent by the Commission in 2005, does not pose any prejudice to the respondent.

17I conclude that the Application was made to the Tribunal by June 30, 2009.

18The respondent asserts that the applicant’s failure to respond in a timely fashion to the Tribunal’s directions to complete the Form TR-1 properly and his failure to respond in a timely way to the Request for Order should be considered in determining whether the Tribunal should exercise its discretion in the applicant’s favour. I agree that those are appropriate considerations and I have weighed them. However, I am not satisfied that the applicant’s non-compliance is so serious as to justify dismissing the Application on the merits at this stage.

19However, the applicant is directed to comply promptly with the Tribunal’s directions in the future.

20The respondent is directed to file their response (TR-2) within 35 days of receipt of this Interim Decision.