HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Debbie Johnson
Applicant
-and-
Toronto Community Housing Corporation
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Johnson v. Toronto Community Housing Corporation
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 February 18, 2009. This Interim Decision addresses the respondent’s Request that the Application be dismissed based on the issue of timeliness.
BACKGROUND
2The Application arises out of the applicant’s employment with the respondent. Specifically, the applicant alleges that she was discriminated against on the basis of disability, race, colour, ethnic origin and place of origin when the respondent investigated and subsequently terminated her for alleged misconduct. The Application indicates that the last event occurred on September 28, 2007 (the date of termination) and explains that she is applying more than one year from the last event because “…the incidents and/or event have not ceased”.
3On June 8, 2009, the respondent filed a Request For Order During Proceeding (“Request”) and a Response to the Application. The Request asks that the Application be dismissed on the basis of timeliness, no prima facie case and mootness. In the alternative, the respondent requests that the matter be deferred pending the completion of an arbitration hearing into a termination grievance filed by the applicant’s union, Canadian Union of Public Employees, Local 79. The Response reiterates the request that the Application be deferred. The submissions in the Response indicate that the grievance is presently being heard by an arbitrator.
4On July 16, 2009, the Tribunal forwarded the Response to the applicant highlighting the request to defer and indicating that the applicant’s reply must deal with the respondent’s request and may reply to any other new matters raised. According to the material on file, the Request for Order raising other preliminary issues was sent to the applicant directly by the respondent.
5On July 25, 2009, the respondent sent a letter to the Tribunal advising that the arbitrator hearing the grievance has advised that he is not prepared to adjourn the arbitration proceedings pending the outcome of the Application and requesting an expedited one day case conference be set to hear the preliminary issues. It would appear that the respondent is now limiting its Request that the Application be dismissed to two grounds: no prima facie case and timeliness.
6On July 29, 2009, the applicant filed her Reply and submissions regarding the respondent’s Request to defer. The applicant did not file a Response to the outstanding Request that the Application be dismissed and the time for doing so has now elapsed.
DECISION
7In the circumstances, I direct the applicant to file a Response to the Request that the Application be dismissed because it was filed beyond the timelines in the Code.
8Section 34 of the Code states:
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.
9Based on the material before me, there is an issue regarding the Tribunal’s power to hear this matter as a result of the delay. In the circumstances, the Tribunal will consider whether the Application should be dismissed under section 34(1) of the Code or whether it is appropriate for the Tribunal to exercise its discretion under section 34(2) of the Code.
10Within ten days of the date of this Interim Decision, the applicant is directed to deliver to the respondents, and file with the Tribunal, a Response to the Request which must include written submissions addressing the request to dismiss the Application for delay. The applicant should explain why she believes that the delay was incurred in good faith and how no substantial prejudice will result to any person affected by the delay. The respondents may reply to the applicant’s submissions in writing by delivering to the applicant and filing their submissions with the Tribunal within 5 days of receiving the applicant’s submissions.
11The Tribunal may decide the issue based on the Application, the Response and any written submissions received or may issue further case management directions and/or require the parties to provide oral submissions.
12The issues of whether or not the applicant has established a prima facie case and the respondent’s request for deferral remain outstanding and will be addressed if necessary following the Tribunal’s receipt of the additional submissions on delay.
13I am not seized of this matter.
Dated at Toronto, this 28th day of August, 2009.
“Signed by”
Kathleen Martin
Vice-chair