der von Felix v. Pivotal: Integrated HR Solution, 2009 HRTO 1340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans der von Felix

Applicant

-and-

Pivotal: Integrated HR Solution and Mike Salveta

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: August 27, 2009

Citation: 2009 HRTO 1340

Indexed as: der von Felix v. Pivotal: Integrated HR Solution

1The 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 4, 2009, alleging discrimination in employment and contracts on a number of grounds including race, colour, ancestry, ethnic origin and reprisal. This Interim Decision schedules a conference call for the purpose of addressing whether the Tribunal has jurisdiction to hear this matter having regard to the delay in filing the Application.

2The Application arises out of the applicant’s employment with the respondent. While the Application is somewhat illegible in parts, it appears the applicant is alleging that he raised issues regarding the payment of certain benefits such as holiday pay and was terminated because of his race, colour, ancestry and/or ethnic origin. In explaining why he was discriminated against, the applicant states that some of “us” (which he clarifies are “minorities”) asked for a meeting and were “pushed back” by a person who is referred elsewhere as someone in authority.

3The Application states that the date of the last event to which the Application relates was January 17, 2006 (which is the date of his termination). The Application was therefore filed almost three and one half years after the incident to which the Application relates. The applicant explains that he is filing late because “Paradiso and Law Association has yet to take care of this matter … and claims forms faxe[d] to the Ontario Human Rights Commission in 2006 no confirmation received nor assigned number”.

4On July 8, 2009, the Tribunal issued a Notice of Intent to Dismiss because the Application was filed more than one year after the last incident of alleged discrimination and the Tribunal was not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The applicant was given 30 days to file written submissions explaining why he believed that the Application is in the Tribunal’s jurisdiction and should be decided by the Tribunal.

5On July 23, 2009, the applicant responded by email. On the issue of the delay, the email states that the applicant hired a counsel to deal with his case, but counsel removed himself in the summer of 2006 without returning his files “until I retrieve most of these[sic] information from servers”. He further states that he “brought him up to The Law Society of Upper Canada which is still ongoing”. The applicant refers to proof of a fax that was sent with the complete Application and also claims against his former counsel/lawyer to prove of the delays without further elaboration.

6Section 34 of the Code reads:

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.

7Given the timing of the events covered by the Application, the Tribunal must determine whether the Code is available to address the applicant’s allegations of discrimination. The Registrar will serve the Application on the respondent, as well as a copy of the applicant’s email of July 23, 2009 and this Interim Decision. The respondent is not required to file a Response at this time.

8The Registrar will schedule a one hour hearing by teleconference call. At the hearing the applicant must explain why he believes that the delay in filing the Application was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The respondent may make submissions in response and explain what, if any, substantial prejudice will result to them or any other affected person because of the delay.

9If the applicant or respondent wishes to rely on any supporting material for the purpose of the teleconference (including facts not already provided for in the Application, case law or additional submissions), they are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the teleconference.

10The Tribunal draws the applicant’s attention to the “Applicant’s Guide” and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The Guide and links to other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar.

11I am not seized of this matter.