Langlois v. Toronto Transit Commission, 2010 HRTO 1072

Human Rights Tribunal of Ontario

B E T W E E N:

Andrew Langlois Applicant

-and-

Toronto Transit Commission Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: May 11, 2010 Citation: 2010 HRTO 1072 Indexed as: Langlois v. Toronto Transit Commission

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on January 7, 2010 and alleges discrimination the grounds of disability and age.

2The Tribunal has not yet delivered the Application to the respondent. 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.

3Section 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.

3According to the Application, the date of the last alleged discriminatory incident was August 8, 2008. This was more than one year after the Application was filed.

4Rule 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 the applicant to file written submissions.

5On March 19, 2010, the Tribunal Registrar sent a Notice of Intent to Dismiss (NOID) to the applicant which noted that the Application appeared 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.

6The applicant filed submissions on April 3, 2010. He indicated that he had been unable to file the Application earlier because he was too disabled to do so until he obtained appropriate medical treatment in January 2009. He then gradually improved, allowing him to file the Application. The applicant filed some medical reports in support of this history.

7An application will only be dismissed at a preliminary stage, before it is served on the respondents, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. A decision to continue to deal with an Application is not a final decision regarding the Tribunal’s jurisdiction in respect of the Application.

8Based on the applicant’s submissions and the supporting medical reports, it is not plain and obvious that the delay in filing the Application was not incurred in good faith. At this preliminary stage of the proceeding, it is not clear that substantial prejudice will result to any person affected by the delay. The Tribunal will continue to process the Application. However, this is not a final decision on the timeliness issue.

9A copy of the Application, this Interim Decision and the submissions and documents filed by the applicant in response to the NOID will be sent to the respondent. The respondent is directed to file a full Response to the Application, which includes submissions on the timeliness issue, and the applicant’s representative is directed to file a full Reply to the Response, which includes submissions in reply to the respondent’s submissions on the timeliness issue. If the respondent takes the position that the Tribunal should not accept the Application because of delay, the applicant may be required to provide medical evidence to support his inability to pursue his rights in a timely manner.

10I am not seized of this matter.