Hugh Campbell v. City of Ottawa, 2010 HRTO 1787

Human Rights Tribunal of Ontario

B E T W E E N:

Hugh Campbell

Applicant

-and-

City of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: August 31, 2010

Citation: 2010 HRTO 1787

Indexed as: Campbell v. Ottawa (City)

1This is an Application filed on June 2, 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 concerns events that occurred in 2005 and 2006, in connection with the applicant’s employment.

3As the Application was filed more than a year after the date of the last incident of alleged discrimination, the Tribunal issued a Notice of Intent to Dismiss, directing the applicant to provide submissions on the delay.

4The applicant responded with submissions, dated August 26, 2010.

5Section 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.

6Under 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.

7An 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.

8In the applicant’s submissions, the delay in filing the Application was caused by the applicant’s understanding that his union had filed and was pursuing a human rights complaint on his behalf through the Ontario Human Rights Commission. Based 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 factors beyond his control. Consequently, the Tribunal will continue, at this point, to process the Application.

9The Tribunal shall serve the Application and a copy of this Interim Decision on the respondent and the applicant’s union. 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 respondent takes the position that the Tribunal should not accept the Application because of delay, the parties may be required to provide evidence on the issues of whether the delay was incurred in good faith and whether substantial prejudice will result to any person affected by the delay.

10I am not seized of this matter.