Maria Leombruni v. Loblaw Companies Ltd., 2009 HRTO 1842

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Leombruni

Applicant

-and-

Loblaw Companies Ltd.

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: November 2, 2009

Citation: 2009 HRTO 1842

Indexed as: Leombruni v. Loblaw Companies

1The applicant filed an Application with the Tribunal on September 10, 2009 alleging discrimination in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The essence of the Application relates to a claim that the applicant was not accommodated in her work assignment based on a medical condition. The date of the last event underlying the Application is described as November 13, 2007.

2On October 1, 2009, the Tribunal issued a Notice of Intent to Dismiss to the applicant. The Notice indicated that it appeared the Application was outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination and the Tribunal was not satisfied that the applicant had satisfied the conditions of section 34 of the Code. The Tribunal invited submissions from the applicant as to why she believed that the Application is within the Tribunal’s jurisdiction.

3The applicant provided her submissions by way of letter dated October 14, 2009. In the Application and her submissions, the applicant states that the facts of her Application are part of another proceeding that is still in progress and references a union grievance filed by United Food and Commercial Workers Canada Local 1977. She further states that she expected that her “experience” would be resolved through arbitration and has only “recently” made aware that it was going no further, thus leading to her Application to the Tribunal. According to the applicant, her Application is filed more than one year after the incident complained of because she was led to believe that her grievance would be going to arbitration and it was not until she found out that it was not, that she decided to proceed to the Tribunal.

DECISION

4Section 34 of the Code reads 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.

5Given 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 and the applicant’s union, along with a copy of the applicant’s letter of October 14, 2009 and this Interim Decision. The respondent is not required to file a Response at this time.

6The Registrar will schedule a one hour hearing by teleconference call. At the hearing the applicant must explain why she 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.

7If 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.

8If the applicant’s union wishes to participate in the conference call, the union should file a Form 5 (Request to Intervene) within 21 days of the date of this Interim Decision.

9The Tribunal draws the applicant’s attention to the Applicant’s Guide and, in particular, to sources of legal assistance and representation that may be available to her identified in the Guide. The Guide and links to other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar.

10I am not seized of this matter.