Berger v. Toronto (City), 2010 HRTO 142

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Berger

Applicant

-and-

City of Toronto and Frances Nunziata

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 26, 2010

Citation: 2010 HRTO 142

Indexed as: Berger v. Toronto (City)

1This Application was filed under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a disputed request to amend the Application.

Scope of the Application

2The complaint which underlies the current Application was filed with the Ontario Human Rights Commission (“Commission”) on April 20, 2006. In this complaint, the applicant alleged that he had been discriminated against because of his disability and that he experienced reprisal. In particular, he alleged that since May 2005 the personal respondent began harassing him because of his need for accommodation of a disability. He became stressed as a result of the harassment and took a leave of absence from October 27, 2005. He was advised that a replacement would be hired and his parking privileges given to the replacement. He also asserted that he was prevented from returning to work.

3In May 2007, the applicant’s counsel wrote to the Commission seeking to amend the complaint to add further allegations of discrimination relating to three November 2007 job competitions. Despite repeated requests by the applicant, Commission did not formally amend the complaint to include these post-complaint allegations.

4On July 13, 2007, the applicant’s counsel provided the respondents with a copy of the request to formally amend the complaint to include the November 2006 allegations.

5When the applicant filed the present Application on April 14, 2009, he sought to add an additional job competition to which he applied in April 2007.

6The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. While the Transition Rules contemplate that parties may make a request to amend the Application, the Code provisions prevail. Amendments which alter the subject matter of the original complaint will be denied.

7The original April 2006 complaint alleged harassment and discrimination by the respondents. The November 2006 allegations suggest either ongoing discrimination (failure to hire because of disability) or reprisal (failure to hire because he filed a complaint) and the respondents were made aware of these allegations during the Commission process.

8Accordingly, in my view, the subject matter of the complaint before the Commission included the November 2006 allegations, notwithstanding the fact that he Commission did not formally amend the complaint to include them.

Delay

9Section 34 of the Code allows the Tribunal to consider applications alleging infringements of the Code brought within one year after the alleged breach. This was one of the amendments to the Code that went into force on June 30, 2008, and extended the limitation period from six months under the old Code. The section also preserves the Tribunal’s discretion to accept late applications in certain circumstances:

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.

10The applicant also raised further post-complaint allegations regarding an April 2007 job competition at the time he filed this Application. Those allegations are of a similar nature to the allegations raised in May 2007. However, they were not raised during the Commission process and it appears they were not raised until April 2009. The respondents specifically raised the delay in filing the April 2007 allegations in their Request for an Order. In his response to the Request, the applicant was afforded an opportunity to explain the reason for filing this allegation more than one year after the incident occurred. No explanation was provided.

11I conclude that the applicant has not established that the delay in raising the April 2007 competition was incurred in good faith. Therefore, this allegation is struck from the Application.