Bolyki v. Ontario Nurses’ Association, 2011 HRTO 547

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Bolyki

Applicant

-and-

Ontario Nurses’ Association, Local 097, Darlene Barnes, Elrett Lecky

and Jennifer Palmer

Respondents

DECISION

Adjudicator: David Muir

Date: March 18, 2011

Citation: 2011 HRTO 547

Indexed as: Bolyki v. Ontario Nurses’ Association

WRITTEN Submissions

Sandra Rose Bolyki, Applicant ) Elizabeth Dyke,

) Counsel

Ontario Nurses Association, Local 097, ) Elizabeth J. McIntyre,

Darlene Barnes, Elrett Lecky and Jennifer Palmer, ) Counsel

Respondents )

1This is an Application filed on June 30, 2009 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal, in correspondence dated December 14, 2010, requested the parties’ submissions on an issue going to its jurisdiction to continue to deal with the Application.

3The jurisdictional issue was framed for the parties as follows:

Under section 53(5), a jurisdictional issue arises as to whether the Commission dealt with the merits of the complaint when it issued a decision under s.36(2) of the former Code, whether or not the applicant subsequently requested reconsideration. This may be different from the situation under s. 53(3), where it was sufficient for the Tribunal to have jurisdiction as long as the complaint was “continued” even if the complaint was in the reconsideration process: see for example Zavadsky v. Ontario (Education), 2008 HRTO 383.

4The relevant provisions of the Code are set out here for convenience:

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.

(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.

5The facts necessary to resolve this issue are not complex or controversial. The applicant filed a complaint with the Commission in December 2004. The Commission conducted an investigation and, despite a contrary recommendation from staff, determined that it would not refer the complaint to the Tribunal in a decision dated December 16, 2008.

6The Commission advised the Tribunal in correspondence dated December 3, 2009 that an application for reconsideration was filed on December 30, 2008. In a letter dated January 9, 2009 the Commission wrote to the applicant and advised that as of January 1, 2009 the Commission no longer had the statutory authority to process applications for reconsideration of its decision.

7The respondents state that section 53(3) and the reasons for decision in Zavadsky, supra have no application to this case because this Application was made pursuant to section 53(5) and not 53(3). The respondent states that the pre-requisites for the Tribunal’s jurisdiction to consider an application under section 53(3) and section 53(5) are different and that the applicant has not met the threshold requirements of the latter section. The key difference between the two provisions being that the pre-requisite for jurisdiction under section 53(3) is that the complaint was a “continued complaint” before the Commission, while the requirement of section 53(5) is that the Commission had not “dealt with the merits” of the complaint.

8The respondent ONA also states that, if the applicant had made a timely request for reconsideration, her complaint might have been considered a “continued complaint” as contemplated by section 53(3). However, regardless of whether the complaint was “continued” under section 53(3), the respondent states that the Tribunal has no jurisdiction to consider the Application under section 53(5) because the Commission had “dealt with the merits” of the underlying complaint on December 16, 2008.

9The applicant’s position is that as a result of rule changes under the Code which occurred in January 2009, the Commission no longer had the statutory authority to process applications for reconsideration. Instead the Commission indicated to the applicant in a letter dated January 9, 2009 that the applicant could file her “application for reconsideration directly” with the Tribunal. The applicant states that this is what she did.

DECISION

10The Application is dismissed. I do not agree with the applicant that the Commission in its January 9, 2009 letter to the applicant advised her that she could file her reconsideration with the Tribunal. The letter does not say that and, in any event, there is no basis for concluding that the Tribunal could ever entertain an application for reconsideration of a decision of the Commission.

11Contrary to the applicant’s submission there were no changes to the rules for the handling of complaints by the Commission in January 2009. The changes to the system for the enforcement of human rights in Ontario were included in Bill 107 some of which took effect in December 2006 and the remainder were proclaimed in force on June 30, 2008. Section 53 is one of a number of transitional provisions introduced into the Code in Bill 107. Section 53 was intended to provide for “an orderly and rational changeover from one legal regime for the enforcement of Code rights to another”. See Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160.

12The effect of section 53(3) was that outstanding human rights complaints which had not been resolved by the Commission would continue to be dealt with by the Commission under the previous system between June 30 to December 31, 2008, except where the complainant decided to abandon the Commission’s process and file a transitional application with the Tribunal under section 53(3).

13After the initial six-month period, commencing on January 1, 2009 section 53(5) took effect permitting a complainant to make an application to the Tribunal until June 30, 2009 provided the Commission had failed to “to deal with the merits of a complaint” .

14I agree with the respondents that Zavadsky has no application to the facts of this Application turning as it did on the meaning of the phrase “continued complaint” in section 53(3) of the Code. Clearly different language is at issue in this case.

15The question to be resolved here is whether or not the Commission had failed “to deal with the merits” of the complaint at the time that the applicant purported to file this Application. There is no issue that the complaint was withdrawn or settled.

16I find that that Commission had “dealt with the merits” of the complaint. There is no doubt the Commission had decided not to refer the complaint to the Tribunal. It is not the Tribunal’s place to consider the appropriateness of that decision, but it is clear that it was a reasoned decision based on the Commission’s view of the merits of the complaint. There can be no dispute that the Commission’s decision of December 16, 2008 dealt with the merits of the complaint.

17What then of the application for reconsideration? Does the fact that the applicant made such an application which she appears to have done, in some way vitiate the Commission’s decision dealing with the merits of the complaint? I find that her application for reconsideration does not have that effect. I am not persuaded that the mere filing of reconsideration can have that effect. Had the Commission granted the reconsideration the issue before me would not arise. Unfortunately for the applicant the Commission lost the jurisdiction to do so. Thus the Commission’s final word is the December 16, 2008 decision which I have found dealt with the merits of the complaint.

18Accordingly the Application is dismissed.