Shaw v. Royal Canadian Legion 479, 2009 HRTO 567

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Shaw

Applicant

-and-

Royal Canadian Legion 479

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 5, 2009

Citation: 2009 HRTO 567

Indexed as: Shaw v. Royal Canadian Legion 479

WRITTEN SUBMISSIONS BY

Susan Shaw ) On her own behalf

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 9, 2009 which alleges that the respondent discriminated against her with respect to employment because of her age. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.

2In her Application, the applicant alleges that the respondent fired her after she reached the age of 65. She lists the date of the last discriminatory event as January 20, 2007, but also states that in February 2008 the respondent told her it would be best for her to retire. She further states that it was only brought to her attention that she could file an Application to the Tribunal in February 2009.

3On April 7, 2009, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss, which states that the Tribunal was in receipt of her Application dated March 16, 2009. This date appears to be incorrect as the Application is stamped as received on March 9, 2009. The Notice informed the applicant that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

4The applicant provided written submissions dated April 21, 2009, which state that she had a heart attack in February 2007, which was followed by quadruple bypass surgery and a slow recovery. She further states that after she recovered from the surgery, she went into a depression as a result of being fired from her job, and only became aware that she had been discriminated against in late 2008 when the respondent dismissed another employee with over 28 years of service.

5Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the Applicant, and requires her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction: Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63. A decision to continue to deal with an Application is not a final decision regarding the Tribunal’s jurisdiction in respect of the Application (Rule 13.5).

6Section 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.

7In my view, based on the applicant’s statements about her heart attack, surgery, depression, and lack of awareness that discrimination had occurred, it is not plain and obvious that her delay in filing the Application was not incurred in good faith. Furthermore, there is no evidence at this preliminary stage of the proceeding that substantial prejudice will result to any person affected by delay.

8The Tribunal shall serve the Application and a copy of this Interim Decision on the respondent. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code because it is untimely.

9I am not seized of this matter.