) ) DAVID GREEN Applicant – v. –, 2010 ONSC 2648

CITATION : David Green v. Ontario Human Rights Commission, 2010 ONSC 2648 DIVISIONAL COURT FILE NO.: 94/09 DATE: 20100504 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT GREER, JENNINGS AND MOLLOY JJ. BETWEEN: ) ) DAVID GREEN Applicant – and – ONTARIO HUMAN RIGHTS COMMISSION, TORONTO POLICE SERVICES BOARD and STAFF SGT. FRANK RUFFOLO Respondents )) )) )) )) )))))) Ernest J. Guiste , for the Applicant Cathy Pike , for the Respondent, Ontario Human Rights Commission Rosanne Guiletti, for the Respondents, Toronto Police Services Board and Staff Sgt.

Frank Ruffolo ) HEARD at Toronto: May 4, 2010 molloy J. (ORALLY) [ 1 ] The applicant, David Green, applies for judicial review of the March 27, 2007 decision of the Human Rights Commission not to refer the applicant’s complaint of discrimination to the Human Rights Tribunal and the Commission’s October 24, 2007 decision not to allow his motion for an extension of time to respond to the March 27, 2007 decision. [ 2 ] This judicial review application was filed on March 5, 2009, approximately seventeen months after the Commission’s second decision.

It was not perfected until October 31, 2009. [ 3 ] The respondents sought, as a preliminary matter, to have this application dismissed for delay. [ 4 ] We are of the view that the delay in this case has been inordinate. Judicial review is an equitable and discretionary remedy and should be refused where there is unexplained delay: International Union of Bricklayers and Allied Craftworkers et al. v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers et al. (2000), 132 O.A.C. 87 at para. 18 (Div.

Ct.) . [ 5 ] The applicant in this case did not bring an application for judicial review for approximately seventeen months and has not provided any compelling reasons for the delay. The Court has traditionally exercised its discretion and refused to grant relief sought in a judicial review application where there has been excessive delay. This Court held in Balanyk v. Greater Niagara General Hospital, [2002] O. J. No. 1208 (Div. Ct.) at para. 3 : An applicant is under an obligation to commence and perfect its judicial review application in a timely manner.

Failure to do so is an independent basis for the denial of the application regardless of the merits of the case. See also Jeremiah v. Ontario Human Rights Commission, [2008] O. J. No. 3013 (Div. Ct.) . [ 6 ] In considering whether to dismiss a judicial review application for delay, the Court will have regard to the length of the delay as well as any justification offered for the delay. Traditionally this Court has expressed concern about any delay greater than six

months: Jeremiah at para. 45. The delay in this case is well beyond that point. [ 7 ] Further, the applicant in this case has offered no explanation whatsoever for the delay since the Commission’s October 2007 decision. The combination of inordinate delay and the absence of an adequate explanation for it is sufficient to warrant dismissal: Jeremiah at para. 48. Given the failure to meet these two tests, we cannot accept the applicant’s submission that the merits of the application must be considered on a motion to dismiss for delay (see also Balanyk).

However, in this case, there is a further complicating factor as a result of extensive amendments to the Human Rights Code that have come into force since the Commission’s decision in October 2007. [ 8 ] At this point, even if we were of the view that the application is meritorious, there is no remedy that we could grant. We cannot remit the case back to the Commission for a decision under s.36 of the Code as to whether to send the case to a hearing.

The Commission no longer has that jurisdiction and has not had that power since the end of December 2008. [ 9 ] We also cannot remit the case to the newly constituted Human Rights Tribunal of Ontario. That tribunal is a statutory body and has no jurisdiction outside its constituting statute to conduct hearings into complaints of discrimination.

Section 53(8) of the Human Rights Code Amendment Act, 2006 , S.O. 2006, c.30 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. [ 10 ] By virtue of that provision, the Tribunal has no jurisdiction after June 30, 2009 to deal with a complaint that is the same or substantially the same as one previously before the Commission. This case would fall within that category. [ 11 ] If the applicant in this case had proceeded in an expeditious manner with this application, it would have been possible to have the judicial review proceeding dealt with in time to fall within the transitional provisions of the new legislation. The delay in proceeding with the application however, is fatal. [ 12 ] Therefore, the application is dismissed.

GREER J. [ 13 ] I am endorsing the Record: “The application is dismissed for the oral reasons delivered. Costs of the Commission and the Board are each fixed at $500.00 inclusive of disbursements. These are nominal costs in the circumstances and we are of the view they are appropriate and reasonable.” MOLLOY J. GREER J. JENNINGS J. Date of Reasons for Judgment: May 4, 2010 Date of Release: May 14, 2010 CITATION : David Green v. Ontario Human Rights Commission, 2010 ONSC 2648 DIVISIONAL COURT FILE NO.: 94/09 DATE: 20100504 3ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT GREER, JENNINGS AND MOLLOY JJ.

BETWEEN: DAVID GREEN Applicant – and – ONTARIO HUMAN RIGHTS COMMISSION, TORONTO POLICE SERVICES BOARD and STAFF SGT. FRANK RUFFOLO Respondents ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: May 4, 2010 Date of Release: May 14, 2010