Moffat v. Northampton Group, 2009 HRTO 1890

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Moffat

Applicant

-and-

Northampton Group Inc. Comfort Hotel Downtown Toronto, Asher Samuel and Satish Kumar

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: November 9, 2009

Citation: 2009 HRTO 1890

Indexed as: Moffat v. Northampton Group

1This Interim Decision establishes a timetable for the filing of submissions on the timeliness of the Application and confirms that the respondents are required to file a full Response.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on August 28, 2009. The applicant alleges that she was discriminated against on the basis of sex, ancestry, creed and reprisal during her employment with the organization respondent and in being terminated. The applicant identifies August 25, 2008 as the date of the last event.

3The applicant states that she was a member of a union at the time of the alleged discrimination. She further states that the facts of the Application were part of a union grievance that is now completed and refers to her union advising that a grievance had been filed regarding her termination.

4On October 21, 2009, the Tribunal served the Application on the named respondents and the applicant’s union, Unite Here, Canada/Ontario Local 75. In accordance with its usual procedures, the Tribunal provided a copy of the Application, along with a copy of correspondence which had been exchanged between the applicant and the Tribunal. This correspondence reflected that the applicant had initially filed an Application which contained a discrepancy between the respondents listed on the Form 1 and the Form 1A sections of the Application, but which had subsequently been amended on October 19, 2009.

5On October 30, 2009, counsel for the respondents, North Hampton Group Inc. Comfort Hotel Downtown and Satish Kumar, wrote to the Tribunal submitting that the Application was untimely. Counsel submits that the Application was filed almost two months late because it was incomplete until October 19, 2009 and that it should not be required to file a full Response until its timeliness objection is addressed. Counsel also submits that his clients are prejudiced by the delay in filing the Application. Among other things, counsel indicates that one of the named respondents no longer works with the organization respondent and it is “unclear” if the respondents who are represented have all records needed to address the Application.

6A copy of counsel’s letter dated October 30, 2009 has been served on the other parties and the applicant’s union.

DECISION

7I find it appropriate to request submissions from all parties in respect of the delay argument.

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.

9In addition, Rules 6.4 and 6.5 state:

6.4 Upon receiving an Application, the Tribunal will determine whether it complies sufficiently with these Rules to allow it to be processed. An Application filed under Rule 6.1 that is not sufficiently complete:

a) may be sent back to the Applicant with an explanation as to how the Application is incomplete, and

b) may be re-submitted not later than (twenty) 20 days after the date that the Application was sent back.

6.5 If the Tribunal determines a re-submitted Application can be processed, it will be dealt with as if complete on the day it was originally filed with the Tribunal for the purposes of s. 34(1).

10In the present case, the original Application was processed in accordance with Rules 6.4 and 6.5. Once the Tribunal determined that it was complete, it was dealt with as if complete on the date originally filed, i.e. August 28, 2009.

11However, even based on the filing date, it appears the Application was filed outside the one year period. In the circumstances, the Tribunal finds it appropriate to 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.

12Within ten days of the date of this Interim Decision, the applicant is directed to deliver to the respondents and file written submissions with the Tribunal 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. If she fails to make submissions the Tribunal will determine the issue based on the material in its file.

13The respondents are directed to file a complete Response to the Application along with any response to the applicant’s submissions on delay within 25 days of receiving the applicant’s submissions or, if she fails to make any submissions, within 35 days of the date of this Interim Decision. Having regard to the material in the Application, including the reference to grievances having been completed, I find it appropriate to require a full response since it may be that there are additional preliminary issues raised by the Application that should be considered at the same time as the issue of delay.

14The applicant may deliver to the respondents and file a Reply to the Application in accordance with the Rules. In her Reply the applicant should respond to the respondent’s submissions on delay in addition to any new matters that are raised in the Response.

15The Registrar will deliver a copy of this Interim Decision to the applicant’s union.

16The Tribunal may decide the issue of timeliness based on the Application, the Response and the parties’ written submissions or may issue further case management directions.

17I am not seized of this matter.