Villa v. St. Marc Spa, 2009 HRTO 952

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Villa

Applicant

-and-

St. Marc Spa and Michael Schawarz

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: July 2, 2009

Citation: 2009 HRTO 952

Indexed as: Villa v. St. Marc Spa

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 January 23, 2009. The applicant alleges that the respondents discriminated against him on April 27, 2007 on the basis of disability when he applied for employment.

2The applicant explains his delay in filing the Application was due to the following:

a. he did not realize that he had been discriminated against;

b. he continued to see the same classified ad for the position in question; and

c. one of his family members was ill and he was not able to focus on filing an application.

3The respondents filed a Response, in which they ask the Tribunal to dismiss the Application because it was filed more than one year after the alleged discrimination occurred.

4The applicant did not file a Reply to the Response and the time for doing so has now elapsed.

5Section 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.

6There is a significant issue regarding the Tribunal’s power to hear this matter as a result of the delay. In the circumstances, the Tribunal will 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.

7Within 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 he believes that the delay was incurred in good faith and how no substantial prejudice will result to any person affected by the delay. The respondents may respond to the applicant’s submissions in writing by delivering to the applicant and filing their submissions with the Tribunal within 5 days of receiving the applicant’s submissions.

8The Tribunal will decide the issue based on the Application, the Response and any written submissions received or may issue further case management directions and/or require the parties to provide oral submissions.

9I am not seized of this matter.