Deopaul Chintaman v. Toronto District School Board, 2009 HRTO 1225

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deopaul Chintaman

Applicant

-and-

Toronto District School Board, Craig Snider, Ron Gumbley and Lisa Kivlichan

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: August 7, 2009

Citation: 2009 HRTO 1225

Indexed as: Chintaman v. Toronto District School Board

1This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with the respondents' Request for Order during Proceedings that portions of the Application be dismissed because the allegations occurred more than one year prior to the filing of original human rights complaint with the Ontario Human Rights Commission (the "original complaint"). The original complaint was filed at the Ontario Human Rights Commission on or about June 28, 2007.

2The applicant self-identifies as a person of colour of Indo-Caribbean descent. He has been employed by the respondent School Board for a number of years. The applicant alleges that he has been subject to unfair treatment and systemic barriers because of age, colour, ethnic origin, place of origin and race. The applicant alleges that he has been treated unfairly in 30 job competitions since 1992. The last job competition and the only one specifically particularized in the narrative of the complaint occurred in February 2007. In an Appendix "A" to the complaint is a list of 33 job competitions which the applicant states he entered but was either not granted an interview or, if interviewed, was not the successful candidate.

3The applicant also alleges that he was denied acting assignments and training opportunities. The applicant states in the complaint that although he has raised these issues with senior management of the respondent, they had not paid sufficient attention to these issues and the respondent School Board has failed to eliminate systemic barriers to promotion. There are no particulars provided for any of these latter allegations.

4The respondents requested that all allegations relating to job competitions which occurred prior to June 28, 2006, one year prior to original complaint being filed with the Commission, should be dismissed on the basis that they are out of time. This leaves only the competition held in February 2007. The respondents argued that there is nothing in the original complaint which links the various job competitions and therefore no basis for concluding that they could be considered a series of events. The respondents also note that there is a gap of one year and eight months between the penultimate competition listed in Appendix "A" and the job competition in February 2007.

5The respondents noted that the applicant had not offered an explanation for the delay in making a complaint about the prior job competitions. The respondents stated that job competition files are shredded two years after they occur unless there is a grievance filed. In this circumstance, the respondents stated that the files for all but the final three job competition files have been shredded and as a result, the respondents argued they will suffer substantial prejudice if they have to respond to any allegations related to any of the prior job competitions.

6The applicant submitted that the job competitions are a series of incidents and that they establish a pattern. The applicant also disputed the alleged prejudice to the respondents, arguing that they should not have shredded the job competition files. The applicant stated that he raised his issues with management on a number of occasions but that the School Board did not respond to his concerns.

7The Request for Order during Proceedings is allowed.

8Section 34 of the Code provides as follows:

34. (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.

9Under section 34, an applicant is prevented from filing an Application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist.

10Other than asserting that he was unsuccessful in the 33 job competitions because of systemic issues related to the prohibited grounds of discrimination cited, there are no particulars provided that would support a finding that the competitions are a series of incidents within the meaning of section 34. In the absence of any particulars, it is not possible to conclude, even on a preliminary basis, that these successive job competitions are arguably a series of incidents.

11I note that the delay between the penultimate and the final competition in February 2007 is one year and eight months. As I interpret section 34 where a series of events is relied upon, a gap of more than one year between incidents in a series would in most cases interrupt the series in the absence of evidence of the considerations set out in section 34(2).

12I find that the applicant has failed to meet his obligation of showing that the delay was incurred in good faith. I further find that there would be prejudice to the respondents in responding to each of the listed job competitions prior to the final one particularized in the complaint.

13The applicant's explanation for the lengthy delay is that he continually raised the issue of systemic discrimination with the employer but that the employer failed to respond appropriately. Other than that bald assertion, the applicant offers no particulars of the dates and times he raised his human rights concerns with the employer, other than a number of emails which appear to be related to a small number of the competitions in which he seeks a debrief on the result. In none of these emails does he raise, even tangentially his concerns as framed in the complaint. In the absence of any explanation at all, it is not possible to conclude that the delay in launching his complaint in respect of any of the job competitions prior to the one occurring in February 2007 was incurred in good faith.

14As noted, the respondents have a practice of shredding job competition files after two years unless there is a grievance. As a result, for most of the competitions in question it will be extremely difficult if not impossible to create a remotely accurate reconstruction of their results. The prejudice to the respondents in being able to respond to any allegations in respect of any of these job competitions is obvious in the absence of the competition files.

15For these reasons I find that the respondents are not required to respond to any allegations that might be made in respect of any of the job competitions listed in Appendix "A", other than the February 2007 competition particularized in the body of the original complaint.