Wilkes v. Just Energy, 2010 HRTO 655

Human Rights Tribunal of Ontario

Between:

Kathy Wilkes Applicant

-and-

Just Energy Corp. and Dean Sandler Respondents

Interim Decision

Adjudicator: Kaye Joachim Date: March 25, 2010 Citation: 2010 HRTO 655 Indexed as: Wilkes v. Just Energy

1This Application was received by the Tribunal on July 2, 2009. On December 17, 2009, the Tribunal wrote the applicant’s counsel advising that the Application could not be accepted because it was received after the statutory deadline of June 30, 2009.

2The applicant’s counsel wrote to the Tribunal seeking to have the Tribunal reconsider its letter on the basis of a possible clerical error. 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 Ontario Human Rights Code, R.S.O. 1990, c. H.19, 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 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

7On April 24, 2009, the Ontario Human Rights Commission wrote to the applicant’s counsel advising that if the applicant wished to continue his complaint, he must file an Application (Form TR-1) with the Tribunal before June 30, 2009.

8The Commission’s letter contained the following statement:

Please remember—if you wish to continue our human rights complaint, you MUST deliver your application to the Respondent and file it with the Tribunal using these forms before 5.00 p.m. on June 30, 2009. If you do not meet with deadline, your case will be closed.

The Tribunal will deal with these applications according to their rules and processes. The forms and additional information about he rules are available under Transitional Applications on the Tribunal’s website www.hrto.ca or by contacting the Tribunal. (emphasis in original)

9On June 29, 2009, the applicant’s counsel delivered the TR-1 form and the original complaint to the respondents by hand. Counsel sent the TR-1 form, the original complaint, and a statement of delivery (Form C) confirming delivery of the material to the respondents, to the Ontario Human Rights Commission (the “Commission”) by June 30, 2009. The Commission acknowledged the Application and advised that they were sending the material to the Tribunal.

10The Tribunal received the Application from the Commission on July 2, 2009.

Analysis

11Section 53(5) sets a deadline of June 30, 2009 for when a transitional application must be “made” to the Tribunal.

12June 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.

13It 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 make an application to the Tribunal, before the end of “the six-month period” that is, by June 30, 2009.

14In this case, the applicant instructed counsel accordingly, and counsel served the necessary documents on the respondents, and filed with the Commission by June 30, 2009. The problem of course is that the documents were filed with the Commission, which is a separate body from the Tribunal. There is no suggestion that this was anything but an error on the part of counsel. A similar error on the part of the courier service might have resulted in the documents being delivered to another address that had nothing to do with either the Commission or the Tribunal. In either of these cases, it might still have been possible for the documents to have reached the Tribunal by June 30, 2009, had the recipients of the documents taken quick action.

15In these circumstances, can an Application that was delivered to the Commission be considered an Application made “to the Tribunal” for the purposes of section 53? I believe that it can. Clearly the applicant complied with the intention of the Legislature, in that she took steps to make her Application to the Tribunal. The context here includes a transition from one system of dealing with the enforcement of the Code to another. The applicant, her counsel and counsel’s administrative staff were used to dealing with the Commission, and it is not unusual for members of the public to use the terms “Commission” and “Tribunal” interchangeably.

16In matters of statutory interpretation the Supreme Court of Canada has made it clear that the paramount considerations are context and giving effect to the intention of the legislature. As noted in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665, at paras 31-32:

The courts are increasingly recognizing that all statutes, whether or not they are constitutional in nature, must be interpreted contextually. P.-A. Côté, Interprétation des lois (3rd ed. 1999), stated at pp. 355-56:

[TRANSLATION] Without going so far as to say that words have no intrinsic meaning, their dependence on context for real meaning must be recognized. A dictionary provides a limited assortment of potential meanings, but only within the context is the effective meaning revealed. . .

See also Sullivan, supra, at p. 3.

Thus, as this Court stated in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21-23, it is appropriate to consider the legislative context. According to Côté, supra, at pp. 355-56, the context of a law includes the other provisions of the law, related statutes, the objective of both the law and the specific provision, as well as the circumstances which led to the drafting of the text.

17The contextual approach is required even where the words in a particular provision have a plain and obvious meaning. In Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, the Court ruled as follows, at para. 32:

Nevertheless, it has to be admitted that textual interpretation has its limits…That is why this Court now considers it important, even when a provision seems clear and conclusive, to nevertheless review the overall context of the provision…

18Thus, I conclude that the Application was “made” to the Tribunal when the Application was delivered to the Commission in error.

19The 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.