HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Warling

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services and Dave Marsh

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: November 30, 2009

Citation: 2009 HRTO 2059

Indexed as: Warling v. Ontario (Community Safety and Correctional Services)

[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code) alleging discrimination in employment on the basis of family status. It appears to relate to various events that occurred between 2004 and 2006.

[2] The applicant filed a grievance through his Union, the Ontario Public Service Employees Union, which was heard and dismissed by the Grievance Settlement Board: 2009 CanLII 43618 (Gray).

[3] The respondent seeks dismissal on two bases. It argues that the Application should be dismissed pursuant to s. 45.1 of the Code as a result of the GSB decision. Section 45.1 reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[4] It also argues that the Application is outside the Tribunal’s jurisdiction because it was filed more than one year after the events to which it relates. Sections 34 (1) and (2) of the Code read as follows:

(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 his Application, the applicant asserts that the discrimination is ongoing and that any delay was incurred because he waited for the GSB decision before filing his Application. He asserts that the GSB decision did not appropriately deal with the substance of the Application because the respondent failed to follow step 2 of the grievance procedure.

[6] In the circumstances, the Tribunal will schedule a one-hour conference call to hear argument on the two preliminary issues raised by the respondent. The applicant will be prepared to proceed first by fully explaining why, in his submission, the Application is timely and/or any delay was incurred in good faith and why he asserts that the GSB decision did not appropriately deal with the substance of the Application within the meaning of s. 45.1.

[7] I am not seized.

Dated at Toronto, this 30^th day of November, 2009.

“Signed By”

David A. Wright

Interim Chair

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