Dioba v. Toronto Public Library, 2009 HRTO 1503

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nacon Dioba

Applicant

-and-

Toronto Public Library

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: September 18, 2009

Citation: 2009 HRTO 1503

Indexed as: Dioba v. Toronto Public Library

APPEARANCES BY

Nacon Dioba, Applicant ) No one appearing

Toronto Public Library, Respondent ) Clifford J. Hart, Counsel

INTRODUCTION

1This is an Application filed November 20, 2008, alleging discrimination in the provision of goods, services and facilities on the grounds of race, ancestry, place of origin, ethnic origin, creed, sex and sexual orientation and that he was subjected to sexual harassment, solicitation/advance and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A preliminary hearing in this matter was held in Toronto on September 18, 2009, pursuant to two earlier Interim Decisions of the Tribunal, 2009 HRTO 165 and 2009 HRTO 433. The purpose of the hearing was to consider the submissions of the parties on the issues of delay/timeliness, no prima facie case and allegedly inappropriate allegations made by the applicant.

3The Confirmation of Hearing was sent to the parties on June 10, 2009. In it, the parties were advised that the hearing would commence at 9:30 a.m. on September 18, 2009 at 655 Bay Street, 14th Floor, in Toronto. The Notice was sent to the applicant at the address provided by him in his Application and was not returned.

4At the time and place set for the commencement of the hearing, the respondent was present and represented. The applicant was not present. I advised those present that the hearing would commence at 10:00 a.m. or when the applicant arrived, whichever occurred first. At 10:00 a.m., the applicant was still not present.

5There is no indication that the applicant did not receive notice of the hearing. I am satisfied that the applicant received timely and proper notice of the hearing.

6In the absence of the applicant and in the absence of any explanation for his failure to attend as required, I dismissed the Application at the hearing.

7Following the hearing, an email was received from the applicant later in the day stating that he would not be attending the hearing as scheduled as he had another appointment that he could not reschedule. This email was copied to counsel for the respondent. The applicant provides no explanation for this late communication and it does not alter my decision to dismiss the Application.

REASONS

Dismissed as Abandoned

8As the applicant received timely and proper notice of the hearing and failed to attend the hearing, I am satisfied the Application may be dismissed as abandoned.

9In addition, I have considered the written submissions of both parties on the preliminary issues of delay/timeliness and no prima facie case as the respondent indicated at the hearing that it was content to rely on the written submissions already filed.

Delay/Timeliness

10Section 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.

11In its Interim Decision 2009 HRTO 433, the Tribunal found that the allegations referred to in the Reply filed by the applicant that are alleged to have taken place up to ten years prior to the October 18, 2008 incident (the “reply allegations”) did not constitute a series of incidents within the meaning of s. 34(1). The Tribunal sought clarification from the applicant whether he intended to ask the Tribunal to exercise its discretion to consider the reply allegations as part of this Application.

12Although the applicant’s April 17, 2009 letter responding to the Interim Decision does not clearly state that he seeks to have the Tribunal exercise its discretion pursuant to s.34(2) of the Code to consider the reply allegations, I have assumed for the purpose of this Decision that he intended to do so.

13Section 34(2) allows the Tribunal to accept an application made beyond this time limit 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.

14In order to be satisfied that the delay was incurred in good faith, the Tribunal would require a reasonable explanation as to why the applicant did not pursue his rights under the Code in a timely manner. Based on a careful review of all the materials, I find the applicant has given the Tribunal no valid reasons he could not pursue his rights under the Code with respect to the reply allegations in a timely manner. Accordingly, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed.

15As a result, the only allegations properly before the Tribunal are the ones relating to the events of October 18, 2008.

No Prima Facie Case/No Jurisdiction

16The respondent states that the Tribunal should dismiss the Application because the applicant has failed to establish that he was denied services or that any Code protected grounds were involved.

17The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent (Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. It is well-established that the threshold for establishing a prima facie case of discrimination is not high.

18I find, having reviewed the materials submitted by the parties, that the applicant fails to make out a prima facie case of a contravention of any provisions of the Code during his interactions with the respondent in October, 2008.

19Moreover, despite making broad assertions that his sexual orientation, race, ancestry, place of origin, ethnic origin and creed were known to employees of the respondent, he alleges no facts in support of these conclusions. I am not satisfied the Application establishes any connection between the Code grounds asserted and the services provided by the respondent. Furthermore, the applicant concedes on several occasions that he left the premises of the respondent following the arrival of a security guard and was not asked to leave by employees of the respondent.

20For all the reasons stated above, the Application is dismissed.