HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wayne Cook
Applicant
-and-
Ontario Human Rights Commission and Ombudsman of Ontario
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Cook v. Ontario Human Rights Commission
1The applicant filed his Application on December 9, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in the provision of services and contracts on the basis of disability, sex, family status and marital status. The original document filed by the applicant contained very little information and a Notice of Incomplete Application was sent to him on February 9, 2010. The applicant sent in the required information on April 17, 2010.
2Following receipt of that information, a Notice of Intent to Dismiss (NOID), dated April 23, 2010 was sent to the applicant, advising him that his Application appeared to be outside the power (jurisdiction) of the Tribunal to decide as (1) he filed the Application more than one year after the last incident of alleged discrimination against the Ontario Human Rights Commission (Commission); and (2) the Application fails to allege any act of discrimination against him by the second named respondent, the Ombudsman of Ontario (Ombudsman).
3The applicant responded to this letter by filing a complaint against the Tribunal with the Ombudsman on May 10, 2010. The Office of the Ombudsman wrote the Tribunal an email, which was copied to the applicant, on May 20, 2010 indicating the Ombudsman would not be investigating the matter.
4The applicant wrote to the Tribunal on May 22, 2010 indicating that he wished to withdraw as against the Ombudsman, and proceed against the Commission. This communication also contains his submissions with respect to the delay issue. On May 23, 2010, the applicant wrote a further email reiterating his wishes with respect to the Ombudsman and indicating that he also wished to withdraw his Application against the Commission. In compliance with these directions, the Registrar administratively closed the file on June 2, 2010. The applicant wrote on June 3, 2010 saying that the file had been closed in error, and the file with respect to this Application was reactivated on June 4, 2010.
DELAY
5The applicant states that he filed a complaint with the Commission on some undisclosed date. He alleges that he was required to provide some additional evidence, and was granted a three-month extension, to November 30, 2008, to file this evidence as an accommodation of his disability. Instead, six weeks prior to this deadline, in October 2008, the Commission wrote to him advising him that they were closing the file.
6The applicant filed his Application on December 10, 2009. The only intervening event was a letter from the Commission, dated December 31, 2008, which he states advised him that “the Commission was closing and [his] complaint remained closed.”
7Section 34 states, in part:
(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.
8As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “The Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation for why he did not pursue his rights under the Code in a timely manner.
9In his response to the NOID, the applicant submitted that his Application against the Commission was not out of time as he received correspondence on December 31, 2008 advising him that the Commission was closing and reiterating that his complaint remained closed. In fact, the Commission did not “close” on December 31, 2008, but it was on this date that it ceased to have any authority to deal with complaints of discrimination under the old Part IV of the Code (see s. 53 of the current Code).
10The applicant cannot rely on correspondence from the Commission on this date indicating that it would no longer be dealing with his (or any other) complaints as an act of discrimination. That being said, the last alleged “event” of discrimination set out in the Application occurred some six weeks prior to November 30, 2008 (i.e., mid-October, 2008).
11Despite being asked in the NOID to explain how the delay was incurred in good faith, the applicant has provided no explanation for why he waited almost 14 months to file his Application against the Commission. Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without jurisdiction to deal with this aspect of the Application. The Application against the Commission is dismissed.
NO ALLEGATION OF DISCRIMINATION
12There is nothing referenced in the Application that establishes a connection between the Ombudsman’s decision to take no action and discrimination based on any of the grounds listed in either the Application, or, more broadly, the Code. Rather than provide any submissions in response to the NOID, the applicant merely indicated he wished to withdraw as against the Ombudsman (a request he later rescinded).
13The mere fact that the Ombudsman did not investigate the applicant’s matter is not a basis for a claim that it has violated the applicant’s rights under the Code. The Tribunal does not have a general power to inquire into the rightness or fairness of decisions made by the Ombudsman. Its jurisdiction is based on the Code, which prohibits discrimination on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability.
14Given the absence of any allegations of discrimination against the Ombudsman, the Tribunal is without jurisdiction to deal with that aspect of the Application. The Application against the Ombudsman is therefore also dismissed.
Dated at Toronto, this 9^th^ day of June, 2010.
”signed by”________________
Naomi Overend
Vice-chair