S.M. v. Durham Catholic District School Board, 2010 HRTO 636

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.M. by her litigation guardian, M.M.

Applicant

-and-

Durham Catholic District School Board,

Andy Fedak, Susan Duane, Sara Foote and Durham Regional Police Service

Respondents

DECISION

Adjudicator: Mark Hart

Date: March 24, 2010

Citation: 2010 HRTO 636

Indexed as: S.M. v. Durham Catholic District School Board

1This decision addresses the question as to whether this Tribunal has jurisdiction to accept the Application in this matter pursuant to s. 53(5) of the Ontario Human Rights Code (the “Code”).

2The Application in this matter was filed on June 30, 2009.

3On November 23, 2009, the Tribunal sent a letter to the parties confirming receipt of the Application and requesting confirmation from the Ontario Human Rights Commission (the “Commission”) as to whether the underlying complaint upon which the Application is based was ever filed with the Commission and the status of any such complaint as of December 31, 2008.

4On December 3, 2009, the Commission responded to the Tribunal and advised as follows:

1. The above-noted complaint was not filed with the Ontario Human Rights Commission within the meaning of section 32 of the Code, as it existed prior to the being amended by the Human Rights Code Amendment Act, 2006.

2. The Commission’s records indicate that the Commission received a completed Complaint Form from the Applicant on or about June 27, 2008.

3. The Commission’s records indicate that on July 21, 2008, Commission staff wrote to the Applicant. The letter to the applicant stated, in part:

This letter is further to our recent telephone conversation. As discussed, on June 30, 2008, changes were made to Ontario’s human rights system when the Human Rights Code Amendment Act, 2006 took effect. As a result, the Ontario Human Rights Commission (the “Commission”) is no longer accepting complaints of discrimination.

We have indicated to you that it is unlikely the Commission will be able to deal with your complaint, and have therefore advised you to file an application directly with the Human Rights Tribunal of Ontario (the “Tribunal”). You have accordingly decided to do so. The file you initiated with the Ontario Human Rights Commission has been closed as requested. Please note that effective June 30, 2008, there will be a one-year time limit (from the date of your last incident of discrimination) to file an application with the Tribunal.

4. The Commission closed the matter on July 21, 2008 with the status “Withdrawn”. No formal complaint was filed or served on the respondent.

5On December 4, 2009, the Tribunal sent a Notice of Intent to Dismiss an Application to the parties, stating that the Commission’s letter indicates that the complaint underlying this Application was not filed at the Commission and thus that the applicant cannot file this Application. The applicant was invited to make written submissions on why this Application should not be dismissed within 21 days and were referred to this Tribunal’s decision in Cerra v. Thunder Bay Regional Health Sciences Centre, 2009 HRTO 1229.

6The applicant, through his counsel, requested an extension to make submissions to January 11, 2010, which was granted on consent. No submissions have been received by the Tribunal.

7The new Code significantly changed the system of enforcement of human rights in Ontario. The Commission continued to have the authority to accept new complaints of discrimination until June 30, 2008, and continued to have responsibility to deal with the complaints in its system until December 31, 2008. After June 30, 2008, new complaints, now called applications, must be made directly to the Tribunal.

8With respect to the complaints filed with the Commission prior to June 30, 2008, the transitional provisions of the Code set out a process permitting former complainants to abandon their complaints and file a transition application under section 53, if their original complaint was still in process at the Commission. Where the Commission has fully processed the complaint, by settlement, withdrawal, or a final decision, then the subject matter of that complaint may not be brought to the Tribunal under either section 53 or section 34.

9The relevant provisions of section 53 are set out below:

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. (emphasis added)

(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.

10These transition provisions make clear that only an applicant who has “filed” a complaint with the Commission prior to June 30, 2008 may abandon that complaint and file a transitional Application under section 53, so long as the complaint is still continued (i.e., has not been settled, withdrawn or dealt with on the merits).

11In light of the information received from the Commission, I find that the applicant did not “file” a complaint with the Commission prior to June 30, 2008 within the meaning of section 53 of the Code. As a result, this Tribunal has no jurisdiction to accept this Application as filed pursuant to s. 53(5) of the Code.

12The Application is dismissed.