HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Patricia Fry
Applicant
-and-
Bevertec CST Inc.
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Fry v. Bevertec CST
1This is an Application filed on April 28, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2The Application alleges that the respondent discriminated against her on the ground of sex when it treated her as an independent contractor while other workers, who were men, were treated as employees. The applicant worked for the respondent as an independent contractor, and then eventually as an employee, from May 2008 to February 2009.
3On June 21, 2010, the Tribunal issued a Notice of Intent to Dismiss, in which it directed the applicant to provide submissions explaining the delay in filing the Application. The applicant filed a letter on July 22, 2010. In the letter she states, among other things, that the reason for the late filing was that she was awaiting a decision under the Employment Standards Act 2000, S.O. 2000, c.41 (“the ESA”) on her employment status, which took one and half years to receive. She states that the circumstances were beyond her control.
4In her Application, the applicant also states that she was instructed by her lawyer in October 2008 to file a complaint with the Ontario Labour Relations Board (the Board). She states that since receiving a ruling from the Board in April 2010, she spoke again with her lawyer and was instructed, among other things, to file her Application with the Tribunal.
5An application will only be dismissed at a preliminary stage, before it is served on the respondents, 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.
6Section 34 of the Code provides:
(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.
7Based on the information provided by the applicant, it is not plain and obvious to me that her delay in filing the Application was not incurred in good faith. The Tribunal will continue, at this point, to process the Application. The Tribunal shall serve the Application and a copy of this Interim Decision on the respondent.
8This is not a final decision with respect to the issue of whether the Application is timely. If the respondent takes the position that the Application is untimely, it should indicate this in its Response. Following the filing of a Response and Reply, the Tribunal will determine how to proceed with the Application. The applicant may be required to provide evidence to support her inability to pursue her rights in a timely manner
9I am not seized of this matter.
Dated at Toronto this 4th day of August, 2010.
“Signed By”
Sherry Liang
Vice-chair