Stewart v. Mitten Vinyl, 2010 HRTO 1628

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glen Stewart

Applicant

-and-

Mitten Vinyl Inc.

Respondent

DECISION

Adjudicator: Sherry Liang

Date: July 30, 2010

Citation: 2010 HRTO 1628

Indexed as: Stewart v. Mitten Vinyl

1This is an Application filed on April 19, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the ground of disability. In the Application, he states that the last event of alleged discrimination occurred in February 2009.

2The Tribunal issued a Notice of Intent to Dismiss advising the applicant that the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination described in the Application. The Tribunal invited the applicant to make submissions on the issue of the delay, explaining why the Application should proceed. The applicant was advised that if he did not file written submissions, the Tribunal would make its decision based only on the information in the Application. The applicant has not filed submissions and the time for doing so has passed.

3Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal 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.

4Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

5An application will only be dismissed at a preliminary stage 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.

6In 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

7The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights.

8The only explanation the applicant has given for the delay in filing this Application is found in his Application, where he states “I was unaware until recently that I had this human right. I have also been trying to scrape by and get an education at the same time to make myself employable again. I was involved in a messy divorce/custody battle as well.”

9In the circumstances, the Tribunal finds that the applicant has not provided the Tribunal with a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner. Although he states that he was unaware until recently that he had a human rights claim, on the material before me, he has not established that he had no reason to make inquiries about his rights earlier.

10While the applicant may well have experienced personal hardships following the events giving rise to this Application, he has not established that he could not have pursued his rights within the timeline mandated by the Code.

11I find that the delay was not incurred in good faith and it is therefore plain and obvious that it does not fall within the Tribunal’s jurisdiction. It is not necessary to address the question of prejudice.

12The Application is accordingly dismissed.