Dsouza v. Shoppers Drug Mart, 2010 HRTO 1740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aaron Dsouza

Applicant

-and-

Shoppers Drug Mart Gunjan Avinashi Pharmacy Inc., Shoppers Drug Mart, Shoppers Drug Mart Corp

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: August 24, 2010

Citation: 2010 HRTO 1740

Indexed as: Dsouza v. Shoppers Drug Mart

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 May 28, 2010, alleging that the respondents discriminated against him in respect of employment on the grounds of disability, creed, and record of offences.

2The Application appeared to indicate that the last alleged incident of discrimination, the termination of the applicant’s employment, occurred on May 26, 2009. On July 7, 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.

3Section 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.

4The Application included several documents, among them a prescription form for a medication used to treat depression and anxiety dated in late December of 2009, apparently filed in support of the applicant’s assertion that he suffered from clinical depression following the termination of his employment. Another document appended to the Application is a Statement of Claim referring to the termination of the applicant’s employment. The Statement of Claim does not refer to any of the grounds noted in the Application, to the Code nor to discrimination; it is focused strictly on asserted contractual rights to more notice or compensation in lieu of notice than was afforded the applicant on his termination.

5The applicant filed a Reply on July 18, 2010. In his Reply, he expanded on some of the circumstances noted in the Application. He states that one of the reasons for his lateness was that the lawyer who represents him on the civil action advised him not to “involve Human right as a solution” on the basis that his civil suit would be “resolved in a timely fashion”. He also indicates that his depression had involved suicidal feelings.

6An 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: Brooks v. North York General Hospital, 2010 HRTO 453; Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

7Based on the information provided by the applicant, it is not plain and obvious to me that his delay in filing the Application was not incurred in good faith. On the basis of the applicant’s assertions, which are at this stage unchallenged, the delay may have been caused by a medical condition affecting his ability to pursue his rights, as well as by legal advice. There is no evidence at this preliminary stage of the proceeding that substantial prejudice will result to any person affected by delay. Consequently the Tribunal will proceed with the Application.

8The Tribunal shall deliver the Application and a copy of this Interim Decision on the respondents. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code. If the respondents take the position that the Tribunal should not accept the Application because of delay, which in this case appears to be two days, they may apply to the Tribunal for an order. In that case, the applicant may be required to provide evidence to support his position that the delay was incurred in good faith and that the respondents are not substantially prejudiced by the delay, and the respondents will be required to establish that the delay was not incurred in good faith or that they are substantially prejudiced.

9I am not seized of this matter.