Blanchette v. Ontario (Natural Resources), 2010 HRTO 924

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Blanchette

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources, Brian Morrison, Mike Kindree and Charlie Tedesco

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: April 28, 2010

Citation: 2010 HRTO 924

Indexed as: Blanchette v. Ontario (Natural Resources)

WRITTEN SUBMISSIONS BY

Her Majesty the Queen in Right of Ontario )

as represented by the Minister of Natural ) Omar Shahab, Counsel

Resources, Brian Morrison, Mike Kindree and )

Charlie Tedesco, Respondents )

1This Application was first received by the Tribunal on January 9, 2009 and completed on February 8, 2010. The respondents have made two preliminary objections to the Tribunal’s authority to process this Application on the merits.

2First, the respondents assert that the Tribunal has no authority to process this Application as it was not made prior to the June 30, 2009 statutory deadline. Alternatively, the respondents assert that the Tribunal should exercise its discretion under section 45.1 of the Code to dismiss the Application on the basis that the subject matter of the application has appropriately been dealt with by a decision of the Grievance Settlement Board.

June 30, 2009 Statutory Deadline

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 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 January 5, 2009, the applicant’s representative faxed a copy of a section 53(3) Application (Form A) and the original complaint filed with the Ontario Human Rights Commission on June 5, 2007.

8On February 26, 2009, the Tribunal advised the applicant that the Application was incomplete as it was made on the wrong form. After January 1, 2009, transitional applications are to be made on a Form TR-1. Also, the applicant had not delivered a copy of the Form TR-1 and the original complaint to the respondents. The respondents were copied on the Tribunal’s correspondence of February 26, 2009 and from that point were aware of the outstanding Application.

9On August 5, 2009, the Tribunal sent a copy of a Form TR-1, along with a copy of a statement of delivery (Form C) to the applicant’s representative and directed the applicant to complete the Application immediately.

10On December 11, 2009, the Tribunal sent a further letter to the applicant advising that if he did not complete his application within 21 days, the Application may be dismissed.

11On December 22, 2009, the applicant’s representative faxed a completed Form TR-1 and a statement of delivery to the Tribunal. The statement of delivery indicated that the applicant had sent, not the Form TR-1, but a Form A to the respondents.

12On December 23, 2009, the Tribunal advised the applicant that his Application was still incomplete as he had not filed a statement of delivery confirming that he had a copy of the Form TR-1 and the original complaint to the respondents. Notwithstanding this correspondence, the respondents appear to have received the Form TR-1 from the applicant as they filed a response (TR-2) on February 9, 2010.

13Accordingly, the Tribunal treated the Application as having been completed by February 8, 2010.

Analysis

14Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

15I 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.

16In 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 their intention to make an application. In some cases, the Form TR-1 may suffice. In other cases, the original Commission complaint may suffice. The Tribunal has previously held that sufficiency of the statement of delivery will generally not affect the date on which the application is considered to have been made to the Tribunal.

17My 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;

18In 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 respondents were aware of the original complaint since 2007 and were aware since February 2009 through the Tribunal correspondence that the applicant was intending to pursue the transitional application, I find that these are appropriate circumstances to relieve against the strict application of the Rules.

19I exercise my discretion to waive the Tribunal Rules that require that the Form TR-1 be delivered together with the original complaint to the respondents at the same time. I deem the Application to have been made prior to the June 30, 2009, notwithstanding that the applicant apparently did not deliver the Form TR-1 to the respondents prior to that date.

Section 45.1/Abuse of Process

20Section 43(2) of the Code provides that “an application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions.”

21The Registrar-Transition will contact the parties to schedule a preliminary hearing to hear the respondents’ request that the Application be dismissed under section 45.1 or as an abuse of process. The parties’ attention is directed to the following case law: Manhas v. A.O. Smith Enterprises, 2010 HRTO 659; Asiamah v. Olymel S.E.S./L.P., 2009 HRTO 1750.

22The applicant has been extremely dilatory in responding to the Tribunal’s directions to complete his Application in a timely fashion. Although I have not dismissed the Application as a result of this conduct, the applicant’s failure to comply with further Tribunal directions will not be tolerated.

23The applicant was also previously directed by the Tribunal to file written submissions on the above preliminary issues and has not done so. The applicant is directed to file written submissions on the section 45.1/abuse of process issues within 30 days of the date of this Interim Decision.

24If the applicant does not comply with this direction, the Tribunal will consider that the applicant has abandoned his Application and it will be dismissed.

25The respondents are directed to file reply submissions, including any submissions with respect to the above case law, within 10 days of receipt of the applicant’s submissions.