HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Villa

Applicant

-and-

St. Marc Spa and Michael Schawarz

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: September 4, 2009

Citation: 2009 HRTO 1406

Indexed as: Villa v. St. Marc Spa

Written submissions by

Darrell Villa, Applicant ) On His Own Behalf

St. Marc Spa and ) Emerson MacRae, Counsel

Michael Schawarz, Respondents )

[1] 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 January 23, 2009. The applicant alleges that the respondents discriminated against him on the basis of disability when he applied for employment on April 27, 2007.

[2] The applicant suffers from a hearing disability. He states that he attended at St. Marc Spa on April 27, 2007, and applied for a job as a floor attendant. He alleges that the person who received his application package told him: “I’m sorry we can’t hire you because you’re deaf. Because if there’s an emergency, it’ll be a problem for us.”

[3] The respondents filed a Response, in which they dispute the applicant’s allegations and ask the Tribunal to dismiss the Application because it was filed more than one year after the alleged discrimination occurred.

[4] Section 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.

[5] In an Interim Decision, [2009 HRTO 952](https://www.minicounsel.ca/hrto/2009/952), I concluded that there was a significant issue regarding the Tribunal’s ability to hear this matter as a result of the applicant’s delay in filing the Application. I advised the parties that the Tribunal would 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. I invited the parties to provide written submissions regarding these issues. The applicant filed submissions on July 27, 2009, and the respondents filed submissions on July 29, 2009.

ANALYSIS

Was the Application filed within one year of the alleged discrimination?

[6] The incident to which the Application relates allegedly occurred on April 27, 2007. The Application was filed on January 23, 2009, approximately one year and nine months after the date of this alleged incident of discrimination.

[7] The applicant alleges that he mailed a second job application package to the respondents, sometime in January 2009, after filing this Application. It is not clear from the applicant’s submissions that he is alleging that a further incident of discrimination occurred in January 2009.

[8] The respondents deny receiving a job application from the applicant in January 2009 and state that, in any event, they did not interview or hire any new employees (except a masseur) after January 5, 2009.

[9] In my view, the applicant has not alleged any facts that would support a finding of discrimination in regards to this second application for employment, nor has he alleged any facts that would support finding of reprisal. In particular, the applicant does not suggest that his January 2009 job application was treated any differently from other job applications received by the respondents in approximately the same timeframe.

[10] Accordingly, I find that the Application was filed more than one year after the incident to which it relates.

Was the delay in good faith?

[11] In his Application, the applicant explains that the delay of approximately one year and nine months in filing the Application is due to the following:

a. he did not realise that the respondents had discriminated against him;

b. he has since seen the same classified ad seeking a floor attendant; and,

c. because one of his family members was sick and dying, he was not able to focus on filing a complaint against the respondents.

[12] In his written submissions, the applicant’s explanation is different and, in fact, contradicts his earlier statement that he was not aware of the possible discrimination. In his written submissions, the applicant stated:

I was going to file a complaint against the St. Marc Spa through the OHRC right after I dropped my resume off at the St. Marc Spa but I learned that my grandmother was dying. I was vastly close to her. I flew to be with her. Her time has finally come and it took me some time to accept her departure.

[13] In light of this statement, I do not accept that the applicant was unaware of his rights or that this was a factor in the late filing of the Application. I also fail to see (and the applicant did not explain) how an ongoing classified advertisement for a position has any bearing on the applicant’s delay in filing an Application.

[14] In light of these conclusions, the issue becomes whether the poor health and eventual death of the applicant’s grandmother are good faith reasons that prevented the applicant from complying with the limitation period set out in the Code.

[15] The respondents point out that the applicant provides no details regarding the timeframe of his grandmother’s diagnosis, illness or death. Nor does he provide any information about where or when he travelled in order to be with her.

[16] The respondents filed board minute meetings of the Ontario Rainbow Alliance of the Deaf, which they state demonstrate that the applicant was in Toronto on at least December 2, 2007, and May 24, 2008, and able to participate in board meetings.

[17] At a minimum, the Tribunal requires a reasonable explanation of why an applicant did not pursue his rights under the Code in a timely manner. In this regard, the information provided by the applicant is very vague and does not adequately explain why he could not comply with the limitation period set out in the Code.

[18] I am not satisfied that the applicant was unable to pursue his allegations under the Code in a timely manner or that the delay was incurred in good faith. Because of my determination, it is not necessary for me to consider whether there would be any substantial prejudice to any person affected by the delay.

[19] The Application cannot proceed under section 34(1) of the Code and is dismissed.

Dated at Toronto, this 4^th^ day of September, 2009.

“Signed by”

Michelle Flaherty

Vice-chair