HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Atherton

Applicant

• and-

1022756 Ontario o/a Vent Mate Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 5, 2010

Citation: 2010 HRTO 1464

Indexed as: Atherton v. 1022756 Ontario

BACKGROUND

1This Interim Decision deals with an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on April 6, 2010 and alleges discrimination and reprisal in employment on the basis of disability. The applicant alleges that the respondent terminated his employment, despite receipt of medical documentation verifying that he was under medical care following the murder of his common-law spouse. The last alleged discriminatory incident was in late April 2008, when the applicant’s employment ended. This Application was filed approximately two years after the last alleged discriminatory incident.

2Section 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.

3On May 19, 2010, the Tribunal Registrar sent a Notice of Intent to Dismiss to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

4The 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.

5The Tribunal has not yet delivered the Application to the respondent. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.

APPLICANT’S SUBMISSIONS

6The applicant filed written submissions on June 17, 2010, addressing both parts of the test for waiver of the one-year time limit under section 34. With respect to the fist part of the section 34 test, the applicant submits that the delay in filing his Application was incurred in good faith. The applicant filed medical documentation from 2008 in support of his Application indicating that the applicant was receiving medical care and psychotherapy a result of the brutal murder of his common-law spouse. The applicant indicates that he was unable to file the Application earlier for two reasons. First, the applicant states that he was mentally unfit to do so and underwent a long period of recuperation following the murder. Second, the applicant explains that, because of his mental state, his father launched an Employment Standards claim on his behalf. The applicant indicates that he only discovered subsequent to the Employment Standards decision (rendered on May 11, 2009) that his human rights concerns were not within the jurisdiction of the Ministry of Labour.

7With respect to the second part of the test that there is “no substantial prejudice” to any person affected by the delay, the applicant submits that there are few potential witnesses in the case and that facts and circumstances are well known to all parties and witnesses who have also been involved in the Employment Standards matter. The applicant also submits that most of evidence is writing and as such there should be no prejudice to the respondents.

DECISION

8In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

9An application will only be dismissed at a preliminary stage, prior to service on the responding party, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

10The applicant submits two reasons for the delay: (i) mental health concerns and (ii) discovered human rights only after seeking Employment Standards recourse. With respect the applicant’s submissions regarding the latter ground (delay due to recourse before Employment Standards), it is noteworthy that efforts to pursue one’s rights elsewhere and/or late discovery of one’s rights, without more, have been found not to justify delay. See: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

11In light of the applicant’s submissions regarding his mental health and little prejudice, as well as the allegations and the medical documentation filed in support of the Application, it appears that some delay in filing the Application may have been incurred in good faith. Given the applicant’s submissions, I am not satisfied it is plain and obvious that the delay was not incurred in good faith and no substantial prejudice to the respondent(s) will result if the application proceeds. Accordingly, the Tribunal will continue to deal with the Application.

12This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application. I am not seized of this matter.