Sam Battaglia v. Maplehurst Correctional Complex and Chris Tyrell, 2010 HRTO 1385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sam Battaglia

Applicant

-and-

Maplehurst Correctional Complex and Chris Tyrell

Respondents

DECISION

Adjudicator: Alison Renton

Date: June 18, 2010

Citation: 2010 HRTO 1385

Indexed as: Battaglia v. Maplehurst Correctional Complex

APPEARANCES

Sam Battaglia, Applicant ) On His Own Behalf

Maplehurst Correctional Complex ) Lorenzo Policelli, Counsel and Chris Tyrell, Respondents )

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 June 8, 2009. He alleges that the respondents discriminated against him with respect to services because of creed specifically when they did not return property owned by him when he was released from custody in 2007.

2Before sending the Application to the respondents, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant advising that it appeared the Application was outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination. The Tribunal directed the applicant to provide submissions to address the delay issue.

3The applicant provided submissions in which he stated that he had been incarcerated in another province since his involvement with the respondent. Following receipt of those submissions, the Tribunal issued an Interim Decision, 2009 HRTO 1167, in which it determined that it was not plain and obvious the delay in filing the Application did not occur in good faith. The Tribunal determined that, at that point, it would continue to process the Application and it was sent to the respondents for Response.

4The respondents filed a joint Response and a Request for Order During Proceedings (“RFOP”), both dated August 28, 2009. In the RFOP, the respondents requested that the Tribunal dismiss the Application as being outside the Tribunal’s jurisdiction pursuant to Rule 13. The respondents submitted that there were no prima facie facts in the Application alleging that the Code had been violated. The respondents submitted that “there is no basis that incarceration postpones a limitation period” which would justify the filing of the Application beyond the one year limitation period set out in section 34 of the Code. The respondents also submitted that they have been “substantially prejudiced” by the late filing of the Application and that the Interim Decision did not address the issue of the respondents’ prejudice.

5A conference call hearing was held on June 9, 2010 and the Tribunal heard submissions from both parties. During the hearing, the applicant advised that the date of the last incident was 2005 rather than 2007 as identified in his Application and that the property that was not returned to him was a ring.

NO PRIMA FACIE CASE

6The applicant alleges that the respondents discriminated against him when they failed to return some of his property to him when he was released from custody. The Application, while sparsely worded, appeared to suggest that a cross the applicant owned was not returned to him when he was released from custody. During the conference call hearing, the applicant stated that the cross was returned, but a ring was not. He provided no details about the ring.

7The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which, if it is believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.) at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that is actions were not discriminatory. It is well established that the threshold for establishing a prima facie case of discrimination is not high. See Hobart v. Renfrew County Housing, 2010 HRTO 1154; Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 1229.

8The jurisdiction of the Tribunal is based upon the Code. The Tribunal does not have a general power to inquire into claims of unfairness that are outside its jurisdiction.

9While I appreciate the applicant’s position that he contacted the respondents on a number of occasions about the return of his property and that the respondents, from his perspective, have not satisfactorily looked into or compensated him for his lost property, the applicant’s allegations do not establish a breach of the Code on the basis of creed. Therefore, I am not satisfied, after hearing the applicant’s submissions, that he has established a prima facie case of discrimination and the Application is dismissed on that basis.

DELAY IN FILING THE APPLICATION

10The applicant submits that the delay in filing his Application was made in good faith. In explaining why his Application was filed more than one year after the date of the event, the applicant submitted that he made contact with the respondents in 2005, 2006 and 2007 about the return of his property. In 2008 he was incarcerated in another province and did not make contact with the respondents. In June 2009 he filed his Application.

11The respondent submits that incarceration does not postpone a limitation period and referenced in support of this principle Ontario (Attorney General) v. Fazekas, 2009 CanLII 38787 (ON S.C.) and noted that there was a 48 month delay in filing the Application. As a result of the delay, the respondents are prejudiced in their ability to retrieve any documentation pertaining to the ring.

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 the last in a series of incidents) to which the application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the application relates unless the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no one would be substantially prejudiced by the delay:

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 subsection 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.

13As was clarified during the conference call hearing, the date of the last incident upon which the Application is based was 2005 when the applicant was released from the corporate respondent. The Application was not filed until June 2009, almost 48 months later.

14The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith.

15In 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 Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

16Efforts to pursue one’s rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508; Miller, supra. In this case, the applicant submits that he contacted the respondents in 2005, 2006 and 2007 about the return of his ring. He did not contact them in 2008 because he was incarcerated in another province and he filed his Application in 2009.

17While I appreciate that the applicant is puzzled and upset why the respondents would not appropriately investigate into his lost property after he contacted them on a number of occasions, having carefully considering this matter, I find that the applicant has not established that the delay in filing his Application was incurred in good faith as required by section 34(2) of the Code. The Application is dismissed on this basis too.

18The Tribunal has held that if the applicant fails to demonstrate that the delay was incurred in good faith it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579 and Dean v. Brantford Office Machines, 2010 HRTO 385.

19Accordingly, the Application is dismissed.