Peikang Dai v. Knox Presbyterian Church, 2010 HRTO 1730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peikang Dai Applicant

-and-

Knox Presbyterian Church, Jim Williams, John Vissers, Wayne Hancock, Kevin Livingston, Janis Ryder, Edward Hayley, William Middleton, and William Ingram Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: August 20, 2010 Citation: 2010 HRTO 1730 Indexed as: Dai v. Knox Presbyterian Church

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on January 6, 2010 alleging discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin and reprisal in the social areas of employment, housing, goods, services and facilities, and membership in a vocational association.

2Attached to the Application was a written narrative setting out a chronology of allegations at "Knox Presbyterian Church, Presbytery of East Toronto, Synod of Central, North-eastern Ontario and Bermuda, Presbyterian Church of Canada". The chronology starts in 1998 and ends in 2009 and contains general allegations against some of the individual respondents and the corporate respondent. Exact dates are not provided although the year is generally provided. The Presbytery of East Toronto, Synod of Central, North-eastern Ontario and Bermuda, and Presbyterian Church of Canada are not named as respondents in this Application.

3The respondents filed a Request for Order During Proceedings (Form 10) ("RFOP"). The respondents request that the Tribunal remove the individual respondents as respondents, dismiss the Application for failing to make out a prima facie case of discrimination or, alternatively, dismiss parts of it as being beyond the one year limitation period set out in section 34(2) of the Code, and an extension of time to file a Response.

4The applicant has not filed a Response to a RFOP and the time for doing so has now passed.

5The applicant also has an outstanding section 53(5) Application proceeding before the Tribunal. A hearing in that matter has started, but has not finished. An Interim Decision, Dai v. Presbyterian Church of Canada, 2010 HRTO 883 (and a subsequent reconsideration decision (Dai v. Presbytery of East Toronto, 2010 HRTO 1195) has been issued and it may be that some of the allegations in this Application overlap with the allegations contained in the section 53(5) Application.

DELAY/TIMELINESS

6Section 34 of the Code provides:

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 subsection 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.

7The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to "condone" delay where it is not satisfied that it was incurred in good faith.

Prima Facie case

8The Tribunal considers a prima facie case to be one in which if an applicant's allegations, as presented, are accepted as true, (absent any answer from the respondent(s)) they support a finding that the Code has been violated. See Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28. The Tribunal has determined that an application may be dismissed on the basis of the applicant's failure to establish a prima facie case of discrimination before the applicant has presented evidence. See Arias v Centre for Spanish Speaking Peoples, 2009 HRTO 1025 (Can LII).

9In these circumstances, it is appropriate to schedule a conference call hearing to address the following issues:

1. Is the section 34 Application different from the section 53(5) Application? If so, how?
2. Is the applicant prevented from proceeding with the allegations before 2009 on the basis of delay and whether the delay was incurred in good faith?
3. Does the Application raise a prima facie case of discrimination against the respondents?
4. Should the personal respondents be removed as respondents from the Application?

10The applicant is directed to provide written submissions addressing the 4 issues identified in paragraph 9, including any caselaw, to the respondents' counsel and file them with the Tribunal within 14 days following the date of this Interim Decision. If he does not do so, the Tribunal may dismiss his Application as being abandoned. If he does file written submissions, the Tribunal will schedule a conference call hearing to address these issues.

11If the respondents want to respond to the applicant's written submissions, they shall provide written submissions, including any caselaw, to the applicant and file them with the Tribunal within 14 days following receipt of the applicant's submissions.

12I am not seized of this matter.