HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicolas Kisielewicz
Applicant
-and-
Toronto District School Board
Respondent
DECISION
Adjudicator: Sherry Liang
Indexed as: Kisielewicz v. Toronto District School Board
1This is an Application filed on January 13, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment on the grounds of race and ethnic origin as well as reprisal.
2In addition to a Response, the respondent filed a Request for an Order During Proceedings. By Interim Decision 2010 HRTO 1087 dated May 14, 2010, the Tribunal granted part of the request, the removal of a personal respondent as a party. The respondent has also asked that the Application be dismissed. The Tribunal’s Decision directed the applicant to file written submissions in response to the request to dismiss for delay.
3The applicant has delivered several pieces of correspondence in response to the Tribunal’s direction, all of which the Tribunal has reviewed. Given my conclusions, it is not necessary for the respondent to respond to the applicant’s submissions.
4The applicant is a secondary school teacher employed by the respondent. The key event described in the Application is an incident on November 7, 2008, in which the applicant was required to leave a classroom, and escorted to the office of the principal. He alleges that the principal ordered him, in the presence of a representative from the Ontario Secondary School Teachers Federation (the “OSSTF”), not to return to the classroom, suggested that he visit his family doctor, and made a comment about a “second nervous breakdown”.
5The applicant also recounts a number of incidents starting in 2001 in which he alleges he was treated unfairly. The applicant, who self-identifies as white, from Eastern Europe, with a Polish background, states that he was told in December 2001 that because of his Polish background, he did not fit into a school designated to serve the Ukrainian community. The applicant describes a number of incidents between that date and November 2008, some of which he describes as racial harassment, and some of which he alleges breach the Education Act and/or the Criminal Code.
6In the Application form, the applicant indicated that the last event of discrimination occurred on November 7, 2009, but his narrative does not refer to any incidents on that day. Rather, the most recent incident described in the Application and said to constitute harassment or discrimination, was the incident of November 7, 2008. The Tribunal’s Interim Decision directed the applicant to explain why he states that the last event occurred November 7, 2009, given that his written narrative describes acts of alleged discrimination which occurred on and prior to November 7, 2008. He was directed to explain why he did not file this Application until more than 14 months after November 7, 2008.
7The applicant’s submissions following the Interim Decision do not explicitly address the issue of delay. The applicant refers to the complaint he filed with the Ontario College of Teachers (the “College”) over the actions of his principal. It appears that he filed this formal complaint in January 2009, although he wrote to the College earlier, in November. The principal, through counsel, filed a response to the complaint in September 2009, and on November 20, 2009, a panel of the College’s Investigation Committee decided that the matter would not be referred to the Discipline Committee or the Fitness to Practice Committee. The panel stated that the information provided did not support the applicant’s allegations against his principal.
8It appears that the applicant may have waited for the result of an investigation by the College before filing this Application. On his Application form, in explaining the delay, he refers to the decision of the College’s Investigation Committee, and the principal’s response to his complaint.
9The applicant’s submissions repeat his assertions that staff of the respondent breached the Criminal Code and the Education Act. He encloses additional documents, and states that there are other documents that prove his contentions, which were sent six or seven years ago to the Ministry of Education, the College, the respondent, its superintendent and the OSSTF.
DECISION
10Section 34 of the Code requires applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
- (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.
11Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.
12As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.
13In order to satisfy the Tribunal that the delay was incurred in good faith, 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. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
14The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. Further, although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights.
15I find that the events that the applicant alleges amount to discrimination or harassment occurred between December 2001 and November 2008. This Application was filed in January 2010, beyond the one-year time limit in section 34(1). The only reason the applicant appears to give for the delay in filing the Application is that he had an ongoing complaint before the College over one key incident covered by the Application. Based on the principles expressed above, I find that this is not a reasonable explanation for the delay and there is nothing in the material before me establishing any other valid reason.
16Before concluding, I note that in one of his letters, the applicant expresses confusion about the statement in the Interim Decision that he had not filed a Response to the Request for Order. The Tribunal was referring to the Form 10 Request for Order dated April 1, 2010, which was sent to him by the respondent. The applicant had the opportunity to file a Response to the Request within 14 days, and did not. However, through its Interim Decision, the Tribunal gave him a further opportunity to address one of the issues raised in the Request, the respondent’s request to dismiss for delay.
17For the reasons above, this Application is dismissed.
Dated at Toronto this 17th day of June, 2010.
Sherry Liang
Vice-chair