HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenna Wilberforce

Applicant

-and-

Lennox and Addington Family and Children’s Services, the Board of Directors of Lennox and Addington Family and Children’s Services and Greg Moon

Respondents

A N D B E T W E E N:

Glenna Wilberforce

Applicant

-and-

Lennox and Addington Family and Children’s Services, the Board of Directors of Lennox and Addington Family and Children’s Services and Greg Moon

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: September 27, 2011

Citation Number: 2011 HRTO 1764

Indexed As: Wilberforce v. Lennox and Addington Family and Children’s Services

APPEARANCES

Glenna Wilberforce, Applicant ) Chantal Tie, Counsel

Lennox and Addington Family and ) Children’s Services, the Board of Directors ) Carol F.Q. Mackillop, Counsel of Lennox and Addington Family ) and Children’s Services ) and Greg Moon, Respondents )

Ontario Human Rights Commission ) Anthony D. Griffin, Counsel

INTRODUCTION

1The applicant filed an Application (File Number 2008-00668-I), dated November 6, 2008, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, sex, sexual solicitation or advances, and reprisal. The Application indicated that a Complaint based on the same facts as the Application was previously filed with the Ontario Human Rights Commission (the “Commission”).

2In response to the Application, the respondents made a Request for Early Dismissal of the Application, referring to s. 53(8) of the Code, which provides:

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.

3In her Response opposing the Request for Early Dismissal, the applicant provided a copy of a letter dated September 9, 2008, from the Commission which stated, in part, as follows:

You submitted your complaint to the Commission in May 2008. Your complaint was not served to the respondent. In cases where the Commission has not served the complaint to the respondent(s), complainants are being offered the opportunity to withdraw/close the case at the Commission and file the complaint directly with the Human Rights Tribunal of Ontario. Because it would be considered a new case (as it was not served), this would also enable complainants to access legal advice from the Legal Support Centre.

On September 8, 2008, you chose to withdraw your complaint and file directly with the Tribunal. Accordingly, your file has been closed as withdrawn.

The applicant submitted that, for the purposes of s. 53(8) of the Code, there is no prior Complaint filed with the Commission.

PROCEDURAL BACKGROUND

4With respect to the respondents’ Request for Early Dismissal, the Tribunal drew the parties’ attention to the Tribunal’s decision in Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160, and invited the parties to provide further written submissions. In response, the respondents requested that, in advance of either party providing further submissions, the Tribunal request that the Commission provide a statement of facts in respect of the applicant’s Complaint with the Commission, as the Tribunal had done in similar cases. The respondents submitted that the Commission had information relevant to the issues in dispute between the parties.

5In an Interim Decision, 2009 HRTO 204, pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure, the Tribunal directed the Commission to file and deliver to the parties a statement of facts in relation to the applicant’s Complaint filed with the Commission, by March 17, 2009. Similar to Patterson, supra, the Tribunal directed that the statement of facts should include information about the filing of the Complaint with the Commission, communications between the applicant and the Commission, communications between the respondents and the Commission, and any other facts related to the processing of the Complaint by the Commission and its apparent withdrawal (subject to mediation privilege). The Tribunal also provided the parties with an opportunity to deliver and file submissions in response by March 24, 2009.

6The Commission provided a statement of facts on March 17, 2009. The Commission stated, in part, that the applicant did not formally “file” a complaint with the Commission under the old Part IV of the Code and, therefore, it was the Commission’s view that s. 53(8) of the Code would not apply in the circumstances. The Commission stated that a complaint is not formally filed with the Commission simply because an individual may have sent a filled-out complaint form to the Commission.

7On March 20, 2009, the respondents provided a response submitting, in part, that the Commission’s statement of facts “is so woefully insufficient as to fail to respond to the Tribunal’s order” and that it was “more in the character of legal submissions.” The respondents requested that the Tribunal order the Commission to provide, without legal argument, further information within two weeks, and further extend the parties’ obligation to provide their written submissions for a further five business days after the date the Commission’s further information was received by the parties. The respondents also requested a full copy of the Commission’s file in respect of the applicant’s Complaint (subject to mediation privilege).

8The applicant provided submissions in response to the Commission’s statement of facts on March 23, 2009. The applicant submitted, in part, that the respondents’ request for a further extension be rejected. Further, the applicant submitted that the respondents’ request that the Commission be ordered to provide additional information and a complete copy of its file was unwarranted, had the aura of a “fishing expedition”, and should also be rejected.

9In a second Interim Decision, 2009 HRTO 517, the Tribunal declined to require the Commission to provide further particulars and/or production, at the time, and provided the respondents with an additional five days to provide submissions on the issue of whether the Application is barred by virtue of s. 53(8) of the Code. The Tribunal indicated that, following the receipt of submissions, it may determine the issue or provide further procedural directions.

10The respondents provided submissions, dated May 4, 2009. The respondents submitted, in part, that the Tribunal’s decision in Patterson, supra was predicated upon a statement of facts in which the Commission apparently stated that it did not consider a complaint “filed” until its staff had assessed the complaint for accuracy and completeness. They submitted that the Commission’s statement in Patterson appears to be substantively similar to the Commission’s statement in the present case, and is expressly contradicted by the Commission’s own published documents. The respondents submitted that the Commission’s own publications confirm that a complaint was “filed” with the Commission when a complainant signed and dated a complaint, and the complaint was received by the Commission. The respondents submitted that s. 53(8) of the Code should be interpreted accordingly.

11In a third Interim Decision, 2009 HRTO 831, in light of the information and submissions before the Tribunal, the Tribunal determined that it was appropriate to hold an oral hearing to determine the issue of whether the Application is barred by virtue of s. 53(8) of the Code. The Tribunal indicated that it would hear evidence and submissions on this preliminary issue and that it may also hear submissions on any other preliminary or jurisdictional issues raised by the parties. The Commission was invited to participate in the hearing.

12In response to this Interim Decision, the respondents reiterated their request for an order requiring the Commission to produce its entire file, and all related documents, in respect of the applicant’s Complaint. The respondents also submitted that the Application should be dismissed, pursuant to s. 45.1 of the Code, for reasons including that it was already dealt with in the context of an application filed pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1 (the “LRA”), against the same respondents, which was unilaterally withdrawn by the applicant. The respondents also submitted that the Application is, therefore, an abuse of process.

13On June 25, 2009, the applicant also filed a transition Application with the Tribunal (Application File Number TR-0619-09), pursuant to s. 53(5) of the Code, and based on the same facts as the applicant’s Complaint and s. 34 Application. In their Response to the transition Application, the respondents submit that the Complaint underlying the Application was withdrawn and is not a “continued” complaint within the meaning of s. 53 of the Code. The respondents submit that this Application should, therefore, also be dismissed.

14In correspondence dated September 29, 2009, the Registrar-Transition indicated that Application File Number TR-0619-09 would proceed to a hearing on preliminary issues, with Application File Number 2008-00688-I, if it was not settled at mediation.

15It appears that the Applications proceeded to a mediation on March 3, 2010; however, they were not resolved.

16In a Case Assessment Direction dated June 18, 2010, the Tribunal indicated that the following issues would be addressed at a one-day oral hearing:

(a) whether Application File Number 2008-00688-I is barred by virtue of s. 53(8) of the Code;

(b) whether the Application(s) should be dismissed, in whole or in part, pursuant to s. 45.1 of the Code, or as an abuse of process; and

(c) whether or not the Complaint underlying Application File Number TR-0619-09 is a “continued” complaint within the meaning of s. 53 of the Code, and whether or not this Application should be dismissed on this basis.

17In the Case Assessment Direction, the Commission was also asked to respond to the respondents’ request for production of the entire file, and all related documents, in respect of the applicant’s Complaint. By letter dated July 9, 2010, the Commission confirmed that it had already provided its entire file in this matter to the parties.

THE COMMISSION’S STATEMENT OF FACTS AND THE PARTIES’ WRITTEN SUBMISSIONS

18In its statement of facts, the Commission addressed its case processing system. The Commission explained that, in most cases, a potential complainant would contact the Commission, and would be forwarded a complaint form for completion. The Commission’s case management system (“CMIS”) would automatically generate a file number for the contact and that number would ultimately be assigned to the received complaint. If a completed complaint form were returned to the Commission, it would be entered into CMIS and assigned to intake staff for assessment. A complaint sent with the intention of being “filed” would first be assessed for accuracy and completeness in order to ensure that the complaint was in “a form” that met the Commission’s approval pursuant to the former s. 32(1) of the Code, which stated:

Where a person believes that a right of his under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.

Once the assessment process was completed, the complaint would be accepted and would be “filed” for the purposes of the Code.

19The Commission explained that, between June and November 2008, individuals whose complaints were in the intake office but had not yet been assessed and, consequently, had not yet been formally “filed”, were contacted. Intake staff informed these individuals about the impending changes to the human rights system and that the Commission would not be able to process their complaints before the end of the transition period (i.e. December 31, 2008) and it would be more expeditious for them to file their complaints with the Tribunal. With respect to the applicant, the Commission stated as follows:

In Ms. Wilberforce’s case, Commission staff had such a telephone conversation with her on September 8, 2008. Commission staff spoke to Ms. Wilberforce about changes to the human rights system. Ms. Wilberforce advised Commission staff that she would withdraw her complaint and file an application directly with the Tribunal. Her complaint was not served on any potential respondents. Further, her complaint did not undergo the assessment process required for a complaint to be filed with the Commission.

20The applicant submitted that the decision in Patterson, supra is dispositive as it wholly supports her position that the Tribunal has jurisdiction to deal with her s. 34 Application, notwithstanding that she previously submitted and then withdrew a complaint to the Commission. The applicant submitted that, in the present case, as in Patterson, the Commission explained that the applicant never formally “filed” a complaint with the Commission.

21The respondents submitted, in part, that the applicant’s Complaint was signed by the complainant on May 8, 2008, and received by the Commission in May 2008. They also submitted that the applicant served the Complaint directly on the respondents on June 25, 2008, when she confirmed in an application filed pursuant to the LRA that she filed a complaint with the Commission, and attached the Complaint. The respondents submit that the applicant’s LRA application was subsequently unilaterally withdrawn by the applicant and she chose to withdraw her Complaint with the Commission on September 8, 2008.

22The respondents referred to the Commission’s “Internal Guide for Processing Complaints” (the “Commission’s Guide”), dated March 2007. They submit that the Commission’s Guide defines a “complaint” as a written statement of allegations of discrimination on the basis of one or more of the prohibited grounds under the Code, in one or more of the social areas covered by the Code. They also note that the former s. 32(1) of the Code required that a complaint be “in a form approved by the Commission.” They also submit that, under the subtitle “When a Complaint is considered ‘Filed’”, the Commission’s Guide states:

A complaint is considered “filed” only after the complainant has signed and dated it, and it has been received by the Commission. However, after a complaint has been filed it may be amended…

23The respondents also referred to the Commission’s 2008 “Human Rights Policy in Ontario” (the “Commission’s Policy”), which states:

“Filing a complaint” means that you have completed the Commission’s complaint form and provided all requested details. You must have signed, dated and returned the form to the Commission.

24The respondents submit that, provided a complaint met the Commission’s definition of “complaint”, it was considered by the Commission to be filed on the date that it was received, regardless of the time frame in which Commission staff reviewed it. They submit that the applicant’s Complaint was signed and dated by her on May 8, 2008, and received by the Commission prior to June 30, 2008. They submit, therefore, that the applicant’s Complaint was “filed” within the meaning of s. 53(8) of the Code.

THE PRELIMINARY HEARING

25A preliminary hearing was held on January 25, 2011. The Commission participated in the hearing and called Shannon Meadows-Lee, who signed the Commission’s statement of facts, as a witness. The applicant also testified at the preliminary hearing.

26Ms. Meadows-Lee testified that, in March 2008, she became an Acting Manager in the Inquiry and Intake Office of the Commission. She supervised Intake staff who received, analyzed, and served complaints. She confirmed that the applicant’s Complaint was received by the Commission on May 9, 2008.

27Ms. Meadows-Lee was asked about the September 9, 2008 letter that the Commission sent to the applicant. She explained that, during the “transition process”, between June and November 2008, there were a number of complaints that could not be attended to. The complaints were in a queue, but were not processed or reviewed by Intake staff. Consequently, individuals who had sent in complaints were contacted and asked if they might be interested in having their complaint closed at the Commission, filed at the Tribunal, and not considered a complaint for the purposes of the Commission. She explained that, at the time, the Commission was losing staff. She testified that the Commission was not going to be able to process, by the end of 2008, a complaint, such as the applicant’s, that was sent in May 2008. She confirmed that the Commission had a change in process in the spring and summer of 2008, in light of the transition.

28Ms. Meadows-Lee was asked about the Commission’s statement of facts, wherein it states that Ms. Wilberforce “did not formally file a complaint with the Commission”. She confirmed that just because a complaint is submitted to the Commission did not mean that it was formally filed. She explained that complaints were assessed for completeness, and once that process was done, and the complaint was served, it was considered “filed”. She testified that the applicant’s Complaint did not go through that process and was not served by the Commission.

29In cross-examination, Ms. Meadows-Lee reiterated that the applicant’s Complaint was not assessed. She was referred to a brief email from her to an Intake Officer, dated September 15, 2008, stating the applicant’s Complaint was closed and indicating: “Close Reason: Intake – Withdrawn due to Assessment.” She testified that this was a different use of “assessment”, as the assessment was that the Commission would not get to the Complaint, and the applicant’s needs would be better met if she went to the Tribunal. She also explained that this was a CMIS email and that CMIS had limited functionality in terms of what a file could be closed under. She testified that there was nothing in the Commission’s file indicating that the Complaint had been assessed as a viable complaint, such as a service letter or a note from an Intake Officer.

30The applicant testified that she received a call from an Intake Officer at the Commission telling her about the new system, and that she may be better served if she closed her Complaint at the Commission and took it to the Tribunal. She understood that she would suffer no negative consequences. She testified that the Commission did not process her Complaint at all.

31With respect to the respondents’ assertion that her Complaint was served on them with an application pursuant to the LRA, the applicant testified that she did not serve it on the respondents. She explained that her union had a copy of her Complaint, because someone with the union helped her fill it out, and the union attached it to the LRA application.

32The parties agreed that the LRA application was withdrawn, there was no hearing on the merits, and the human rights aspects of the applicant’s Complaint were never considered or settled. The applicant testified that the union wished to withdraw the LRA application and she wished to pursue other avenues by going to the Tribunal.

DECISION

Application File Number 2008-00688-I and s. 53(8) of the Code

33Section 53 is found among the transition provisions of the Code, and applies to complaints filed with the Commission. In particular, s. 53(8) provides, in effect, that an application may not be made to the Tribunal, under s. 34 of the Code, if the subject-matter of the application is the same, or substantially the same, as the subject-matter of a complaint previously filed with the Commission; however, the Code does not define what is meant by “filed”.

34I accept the evidence of Ms. Meadows-Lee, consistent with the Commission’s statement of facts, that just because a complaint was submitted to the Commission does not mean that it was formally “filed”. Under the transition provisions of the Code, the Commission could only continue to deal with complaints filed with it until December 31, 2008. I accept the evidence of Ms. Meadows-Lee that, during the transition process, there were a number of complaints that the Commission could not attend to, or process, by the end of 2008. Consequently, the Commission had a change in process; individuals who had sent in complaints were contacted and asked if they might be interested in having their complaint closed at the Commission, and filing an application directly with the Tribunal. Ms. Meadows-Lee’s evidence in this regard is consistent with the Commission’s statement of facts, and the letter that the Commission sent to the applicant, dated September 9, 2008, which states that “[i]n cases where the Commission has not served the complaint to the respondent(s), complainants are being offered the opportunity to withdraw/close the case at the Commission and file the complaint directly with the Human Rights Tribunal of Ontario.”

35In my view, it is clear that the Commission did not consider the applicant to have “filed” a complaint within the meaning of s. 53(8) of the Code, as stated in its statement of facts. The Commission explained in its statement of facts that complaints would be accepted, and would be “filed” for the purposes of the Code, only after they were assessed for accuracy and completeness in order to ensure that the complaint was in “a form” that met the Commission’s approval. Ms. Meadows-Lee testified, consistent with the Commission’s statement of facts, that the applicant’s Complaint was neither assessed nor served. The applicant testified that the Commission did not process her Complaint at all, and that she understood that she would suffer no negative consequences if she took her complaint to the Tribunal. The Commission’s letter to the applicant, dated September 9, 2008, confirms that the applicant “chose to withdraw [her] complaint and file directly with the Tribunal.”

36In my view, the Commission’s Guide and Policy referred to by the respondents address when a complaint is filed, and not if a complaint is filed. It may be that, with respect to timing, a complaint is considered to be filed on the date that a signed and dated complaint is received by the Commission; however, the complaint must have first been assessed by the Commission to ensure that it is “in a form approved by the Commission”, and not merely on the Commission’s complaint form. Allegations of discrimination must be based on one or more of the prohibited grounds under the Code, in one or more of the social areas covered by the Code. The Commission’s Guide requires that “all requested details” be provided in order for a complaint to be filed.

37Previous decisions of the Tribunal have held that a complaint is not considered “filed” for the purposes of s. 53(8) of the Code merely because an individual fills out a complaint form and submits it to the Commission. See Patterson, supra, S.M. v. Durham Catholic District School Board, 2010 HRTO 636, S.M. v. Durham Regional Police Service, 2010 HRTO 2526, and Cerra v. Thunder Bay Regional Health Sciences Centre, 2009 HRTO 1229. In the present case, I see no reason to depart from the reasoning of the Tribunal in Patterson, supra, wherein the Tribunal stated as follows, at paras. 16 to 19:

… Nothing in the transition provisions or any other part of the Code suggests that section 53(8) must apply to a complaint that the Commission’s owns processes do not treat as having been filed. The language of section 53(8) does not require such a result. The plain meaning does not require that “filed” be read to include a complaint that has been delivered to the Commission and assigned a file number but not otherwise processed.

The meaning given to section 53(8) must have reference to the Commission’s practices and processes. I accept as a fact that under the Commission’s processes, the applicant had not yet filed a complaint. The Commission’s view is consistent with the applicant’s understanding of the status of her complaint, and the letter from the Commission of June 5, 2008, confirms this understanding. Although it refers at one point to the applicant having “decided to withdraw your complaint”, the rest of the letter is consistent with the notion that the applicant had made inquiries about filing a complaint, but a complaint had not yet been filed.

Further, I can discern no policy reason why section 53(8) should be interpreted to cover a complaint that the Commission has not categorized as having been “filed”. Applying section 53(8) to the facts of this application could result in preventing the applicant from advancing her claim of discrimination before the Tribunal, despite the absence of any steps before the Commission beyond the mere acceptance of a completed form and assignment of a file number. It is reasonable to view the intent of the transition provisions as the provision of an orderly and rational changeover from one legal regime for the enforcement of Code rights to another. If this is the case, I cannot see how this purpose would be served by barring this Application, based on these facts.

This Tribunal, as well as the courts, have recognized the importance of applying human rights legislation in a broad and purposive manner. On the material before me, I see no purpose to be served under the Code by barring the present Application, and no reason to interpret section 53(8) to lead to such a result.

38I have carefully reviewed and considered the materials before me, the evidence presented at the hearing, and the parties’ submissions. In the present case, as in Patterson, the applicant’s Complaint was submitted to the Commission, and assigned a file number, but not otherwise processed. I find, therefore, that the applicant did not previously file a complaint with the Commission, within the meaning of s. 53 of the Code. Consequently, the applicant is not barred from proceeding with her Application, File Number 2008-00688-I, filed with the Tribunal pursuant to s. 34 of the Code.

Application File Number TR-0619-09 and s. 53(5) of the Code

39Pursuant to s. 53(2) of the Code, for a six-month period beginning on June 30, 2008, the Commission could continue to deal with complaints filed with it. Further, s. 53(5) provides as follows:

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.

40In light of my finding above, that the applicant did not previously file a complaint with the Commission within the meaning of s. 53 of the Code, it follows that the applicant does not have a basis to file a transition application with the Tribunal, pursuant to s. 53(5) of the Code, as s. 53 only applies where there is a complaint that has been filed with the Commission.

41In the circumstances, it is not necessary for me to determine, therefore, if the applicant had a “continued” complaint with the Commission, within the meaning of s. 53(5) of the Code. I simply note that, based on the evidence before me, it is clear that the applicant did not intend “to put an end to the matters at issue in the complaint”. See Schleifer v. Toronto (City), 2008 HRTO 249, at paras. 12 and 15, and Sharras v. Rouge Valley Health System, 2008 HRTO 454, at paras. 13-17.

42It appears that the Tribunal does not have the jurisdiction to consider the applicant’s Application, File Number TR-0619-09, filed with the Tribunal pursuant to s. 53(5) of the Code.

Section 45.1 of the Code and abuse of process

43The respondents submit that the Application should be dismissed, pursuant to s. 45.1 of the Code, for reasons including that it was already dealt with in the context of an application filed pursuant to the LRA, which was unilaterally withdrawn by the applicant. The respondents also submit that the Application is, therefore, an abuse of process.

44Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

45In the present case, the parties agreed that the LRA application was withdrawn, there was no hearing on the merits, and the human rights aspects of the applicant’s Complaint, which was part of the LRA application and are now contained in the applicant’s Application with the Tribunal, were never considered or settled. There is no indication that another proceeding has appropriately dealt with the substance of the applicant’s Application. See D.F. v. Children’s Aid Society of Hamilton, 2009 HRTO 1485, at para. 12.

46With respect to abuse of process, the Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice. See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37, Snow v. Honda, 2007 HRTO 45, at para. 55, and Campbell v. Toronto District School Board, 2008 HRTO 62, at para. 36.

47In the present case, I disagree with the respondents’ assertion that the applicant’s Application before the Tribunal has been “dealt with” in another proceeding. Again, the LRA application in question was withdrawn prior to any hearing, and the applicant’s human rights allegations were never considered nor settled. Proceeding with the Application before the Tribunal would not, therefore, involve any relitigation of issues.

48In the circumstances, the respondents’ requests that the Application be dismissed pursuant to s. 45.1 of the Code and as an abuse of process are dismissed.

ORDER

49The respondents’ requests for dismissal concerning Application File Number 2008-00688-I, filed pursuant to s. 34 of the Code, are dismissed.

50The respondents’ request that Application File Number TR-0619-09, filed pursuant to s. 53(5) of the Code, be dismissed is granted.

51The respondents shall file a complete Response (Form 2) to Application File Number 2008-00688-I within 25 days of the date of this Interim Decision.

52I am not seized of this matter.