Sam Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sam Battaglia

Applicant

-and-

Maplehurst Correctional Complex

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 29, 2009

Citation: 2009 HRTO 1167

Indexed as: Battaglia v. Maplehurst Correctional Complex

1Sam Battaglia (the applicant) filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 8, 2009 which alleges that Maplehurst Correctional Complex (the respondent) discriminated against him with respect to services because of his creed. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the alleged incident of discrimination.

Background

2The applicant was incarcerated at Maplehurst Correctional Complex. In his Application he is alleging that the respondent did not return property owed to him. It appears this was when he was released from custody. He identifies the last event as having taken place on July 15, 2007 which may be a telephone call he made from Toronto to the respondent which he refers as being the last incident (and last contact).

3On June 26, 2009 the Tribunal's Registrar issued a Notice of Intent to Dismiss the Application. Rule 13.2 of the Tribunal's Rules of Procedure states that a Notice of Intention to Dismiss will be sent to an Applicant where it appears to the Tribunal that an Application is outside its jurisdiction. The Notice of Intention to Dismiss informed the applicant that the Application appears to be outside of the Tribunal's jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal's jurisdiction.

4The applicant provided written submissions dated July 21, 2009, which state in their entirety:

The reason I did not contact the person at the correctional complex (Chris Tyrell) was because I was detained at Quebec for separate charges for this period of time. Also, Mr. Tyrell said at a earlier point in time that he did not know how to deal with the problem (it was out of my hands).

Analysis

5An application will only be dismissed at a preliminary stage if it is "plain and obvious" on the face of the application that it does not fall within the Tribunal's jurisdiction. This has been established by the Tribunal's jurisprudence (Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63). A decision to continue to deal with an Application is not a final decision regarding the Tribunal's jurisdiction in respect to the Application (Rule 13.5).

6Section 34 of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7It appears that the applicant has been incarcerated in another province since his involvement with the respondent and it is not plain and obvious to me that his delay in filing the Application was not affected by this fact. In other words the delay might well have been incurred in good faith. Furthermore, there is no evidence at this preliminary stage of the proceeding that substantial prejudice will result to any person affected by delay. Consequently the Tribunal will continue, at this point, to process the Application.

8The Tribunal shall serve the Application and a copy of this Interim Decision on the respondent. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code.

9I am not seized of this matter.