Chen v. Social Benefits Tribunal, 2009 HRTO 937

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xiao Yan Chen

Applicant

-and-

Social Benefits Tribunal

Respondent

AND BETWEEN:

Borislav Balosin

Applicant

-and-

Social Benefits Tribunal

Respondent

DECISION

Adjudicator: Mary Truemner

Date: June 29, 2009

Citation: 2009 HRTO 937

Indexed as: Chen v. Social Benefits Tribunal

APPEARANCES

Xiao Yan Chen and Borislav Balosin, ) On his own behalf and on behalf Applicants ) of the Applicant Chen

Social Benefits Tribunal, Respondent ) Sharon J. Buchanan, Counsel

INTRODUCTION

1The applicants are spouses. Ms. Chen filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 18, 2008, alleging that the respondent, the Social Benefits Tribunal, discriminated against her in respect of goods, services and facilities on the basis of race, place of origin and ethnic origin contrary to the Code. Mr. Balosin filed an Application on December 5, 2008, alleging that the respondent discriminated against him on the same basis. In his Application, Mr. Balosin stated that he is filing his Application to ensure that he is present at the process before this Tribunal with his wife. His Application mirrors his wife’s Application and is clearly in reference to alleged discrimination against her.

2Most of the allegations in both Applications involve the respondent’s denial of Ms Chen’s appeal for eligibility for certain benefits under the Ontario Works Act, 1997. The applicants allege that they were discriminated against because the respondent had adjourned an in-person March 15, 2006 hearing of Ms. Chen’s appeal, and because it had rescheduled a telephone hearing for March 28, 2007. They allege that it was inaccessible to Ms Chen given a busy line when she dialled the number provided on her hearing notice. The applicants allege that the telephone hearing occurred on March 27, 2007, and not March 28, 2007. Their allegation that the hearing occurred a day before schedule is based on a reference to March 27 in the April 13, 2007 decision which dismissed Ms Chen’s appeal because she did not participate in the telephone hearing. The Applications cite March 27, 2007 as the date on which the last incident of the alleged discrimination occurred.

3In her Application, Ms. Chen provided the following reason for waiting more than a year to file at this Tribunal:

I personally went to the Social Benefits Tribunal to make a complaint, where they told me to wait for their response, because they needed to review something. They never gave me a response.

4Mr. Balosin’s Application provided the same brief reason for the delay, with no reference to when they complained to the Social Benefits Tribunal, what process was followed, or to whom they spoke. There were no details in either Application to explain what was meant by the above paragraph.

5The respondent filed a Request for Order During Proceedings asking the Tribunal to dismiss the Applications on the basis that the Human Rights Tribunal has no jurisdiction over the subject matter of the Applications because 1) they deal with the adjudicative decisions of the respondent and are not a “service” under the Code, and because 2) the Applications were filed later than one year after the alleged discrimination. Replies were filed by both applicants, but neither provided any information about the reason for delay in filing the applications.

THE HEARING

6The respondent’s Request for Order During Proceedings was heard in person on June 15, 2009 in Toronto. The applicants were present. Counsel for the respondent made submissions on the jurisdictional issues raised in the Request. Mr. Balosin then began submissions with respect to the issue of whether the alleged discrimination involved a service covered by the Code.

7Mr. Balosin’s arguments were vague, and he failed to answer my questions about whether he agreed with the respondent in characterizing his Application as one which seeks to review an adjudicative decision of another Tribunal. I explained to him the jurisdictional issue and that the issue was serious in terms of my ability to hear his and his wife’s Applications, but he constantly interrupted me, and expressed strong opposition to the fact that the Tribunal would consider the possibility that it had no jurisdiction over the Applications. I explained that I had not yet decided the jurisdictional issue about the subject matter of the Applications because I needed to hear his side of the argument, but he spoke loudly over me, and failed to answer my questions about his position. He told me that he had nothing more to say about the jurisdictional issue.

8I next explained that it was very important that I hear his position on whether he agreed the Applications were filed late, and why they were not filed earlier, so that I could decide if the lateness was in good faith. By this point, Mr. Balosin was speaking over me again, packing up his belongings and ignoring his wife’s attempts to calm him. He said that he was leaving, but I suggested that we take a break in order that he later have a chance to tell me everything that he might consider important on the delay issue. Mr. Balosin persisted in packing up his belongings and speaking over me. He refused to speak to the delay in filing the Applications. He appeared to be upset, so I recessed the hearing for ten minutes, urging the applicants to take a break and be prepared to address the delay issue upon my return. I explained that if the applicants were not in the room when I re-entered after the break, then I would be limited to the written submissions on the delay issue. The applicants did not return to the hearing room following the break.

9In the absence of oral submissions from the applicants, I advised respondent’s counsel that I would decide the delay issue on the basis of the parties’ written submissions. I granted her request to summarize the respondent’s position, and I adjourned the hearing.

WRITTEN SUBMISSIONS ON THE ISSUE OF DELAY

10In their Responses to the respondent’s Request for Order During Proceedings, the applicants state that they received an upsetting decision from the respondent dated April 13, 2007, and that more than one year later, on April 23, 2008, they contacted the Human Rights Commission which advised them to contact the Tribunal. They did not provide any information to explain why they waited more than one year to contact the Commission, and then a further seven months to contact the Tribunal. Their Responses to the Request also did not provide any information related to the reason stated in their Applications for the delay.

11With reference to the statements in the Applications that the reason for the delay is because the applicants complained to the respondent, the respondent’s submissions state that it has no record that the applicants complained to it. The respondent’s position is that their records show that the last contact it had with the applicants was issuing a decision on April 13, 2007. In the narrative part of the Applications, the most recent event referred to is also April 13, 2007. There is nothing in the applicants’ submissions on the Request that explains the statements in the Applications.

DECISION

12Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. A person may apply to the Tribunal more than one year after the last incident of discrimination, but the legislation allows a person to do so only in certain circumstances:

34 (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.

13In order to satisfy the Tribunal that the delay was incurred in good faith, at a minimum, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

14In this case, the applicants allege that discrimination occurred in early 2007. At that time, the legislative regime was different, and it actually provided applicants with less time, only 6 months, to bring a complaint to the Human Rights Commission. The applicants waited more than a year to make their Applications. Their explanation for this delay does not refer to dates or particulars or provide any coherent basis on which I can conclude the delay was incurred in good faith. The applicants chose not to provide any further explanation at the hearing.

15The Tribunal is not satisfied that the delay in filing these Applications was incurred in good faith within the meaning of section 34(2) of the Code. Accordingly, there is no need to address the respondent’s other jurisdictional arguments to dismiss these Applications.

16The Applications are dismissed.