Kazmi v. Ontario Provincial Police, 2010 HRTO 1454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zafar Kazmi

Applicant

-and-

Ontario Provincial Police, Robert Mahlberg, Barry Rutledge, Scott Kerr,

Robert Knipf, David Hutchingame, and Robert Bruce

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: July 5, 2010

Citation: 2010 HRTO 1454

Indexed as: Kazmi v. Ontario Provincial Police

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 race, colour, ancestry, ethnic origin, and creed in the context of employment. The Application also alleges reprisal or threat of reprisal.

2In essence, the applicant states that he was subjected to derogatory comments, heightened supervision, unfair discipline, and a transfer which he considers to be discriminatory and a demotion.

3A Response has been filed on behalf of the Ontario Provincial Police (“OPP”) and all of the individual respondents except David Hutchingame. Counsel for the other respondents advises that Mr. Hutchingame has retired and that she has not been able to locate him to obtain instructions or to ensure that he has received a copy of the Application.

SERVICE OF THE APPLICATION

4The address provided for Mr. Hutchingame in the Application is that of the Ontario Provincial Police (“OPP”). Based on the representations of counsel for the OPP, although the OPP has taken steps to locate him, Mr. Hutchingame appears not to have been served with a copy of the Application.

5If the applicant wishes to pursue the Application against Mr. Hutchingame, he must (within 20 days of the date of this Interim Decision) provide the Tribunal with additional contact information for Mr. Hutchingame, or otherwise take appropriate steps, including any steps pursuant to the Tribunal’s Rules of Procedure, to ensure that Mr. Hutchingame can be provided with notice of the proceedings.

6If the applicant fails to provide additional contact information, or take other appropriate steps to ensure Mr. Hutchingame can be provided with notice, within 20 days of the date of this Interim Decision, the Tribunal may deem him to have withdrawn the Application against Mr. Hutchingame.

REQUEST FOR DISMISSAL BECAUSE OF DELAY

7In the Response, the respondents seek the dismissal of the Application on the basis that it was filed outside the one-year limitation period provided for in the Code. The Application was filed on December 31, 2009. The respondents argue that the last alleged incident of discrimination took place on December 15, 2008, a year and two weeks earlier.

8The applicant has filed a Reply in which he alleges that the discrimination is ongoing. In this regard, he points to, among other things, the following two examples:

a. the applicant remains unable to work in his division of choice; and

b. he has been denied opportunities available to other police officers (namely, paid duties).

9Section 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.

10It is clear that a number of the allegations contained in the Application relate to incidents which occurred outside the one-year limitation period. At issue is whether there are allegations of discrimination that fall within the one-year period and that constitute part of a series of incidents for the purposes of the Code.

11In my view, there are allegations of ongoing discrimination which, if borne out, could lead to the conclusion that the Application was filed within one year from the last incident in a series. At this early stage in the Application, it is not appropriate for me to resolve facts that are in dispute.

12I have considered whether an oral hearing on the issue of the limitation period would have been of assistance in deciding this request for early dismissal. I have concluded that the evidence required to deal with this issue as a preliminary objection would essentially be the same as the evidence required to decide the case on the merits.

13At this stage of the proceeding, I cannot conclude that the Application was filed more than one year after the last incident in a series of alleged incidents of discrimination. Accordingly, the Request to dismiss is denied.

14It remains open to a member of the Tribunal, weighing all of the evidence at the conclusion of the hearing of this case, to determine what role, if any, section 34 will play in the ultimate disposition of this Application.

15I am not seized of this matter.