Crosby v. Parrish Heimbecker, 2010 HRTO 1452

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Crosby

Applicant

-and-

PH Foods Division of Parrish Heimbecker Ltd, United Food and Commercial Workers Canada Locals 175 & 633 and the Workplace Safety and Insurance Board

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: July 2, 2010

Indexed as: Crosby v. Parrish Heimbecker

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability in the context of employment. The Application also alleges reprisal or threat of reprisal.

2On July 9, 2009, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) pursuant to Rule 13 of the Tribunal’s Rules of Procedure. The Notice stated that the Application appears to fall outside the Tribunal’s power to decide (jurisdiction) because:

a. it was filed more than one year after the last incident of discrimination and it is not apparent that the delay was incurred in good faith or that no substantial prejudice will result to any person affected by the delay; and

b. the Application does not raise a ground or area of discrimination under the Code.

3The Tribunal invited the applicant to provide submissions on these issues within 30 days of the date of the Notice. The Tribunal advised the applicant that, should she fail to provide submissions, the issues could be determined based on the materials already filed with the Tribunal.

4The applicant did not file further submissions.

DELAY

5Section 34 of the Code states:

(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.

6Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

7Based on the materials filed with the Tribunal, I find that all of the allegations against PH Foods Division of Parrish Heimbecker Ltd. (“PH”) relate to incidents which occurred more than one year before the Application was filed.

8The applicant has not provided the Tribunal with any information that would allow me to conclude that the delay in filing the Application was incurred in good faith within the meaning of the Tribunal’s jurisprudence.

9Accordingly, the Application is dismissed against PH pursuant to section 34 of the Code.

GROUND OR AREA OF DISCRIMINATION

10I have reviewed the Application carefully and, in my view, it does not identify a ground or area of discrimination in relation to the respondent, the WSIB. Indeed, I do not understand it to contain any allegations in relation to the WSIB.

11Accordingly, the Application is dismissed against the WSIB because it does not raise any allegations against the WSIB that are within the Tribunal’s power to determine.

THE UNION

12A Notice pursuant to Rule 13 is issued before the Tribunal delivers an application to the respondent. The Tribunal will only dismiss an application following a Rule 13 Notice if it is plain and obvious that the Application is not within the Tribunal’s jurisdiction. A decision not to dismiss an application and to continue to process is not a final decision on the issue of the Tribunal’s jurisdiction: see Rule 13.5.

13In this case, it is not plain and obvious that the Application is barred against the Union by section 34(1) of the Code. Similarly, it is not plain and obvious that the Application does not raise a ground or area of discrimination under the Code in relation to the Union.

ORDER

14The Application is dismissed against PH and against the WSIB. The Application may proceed against the Union.

15I am not seized of this matter.