Shawnett Rowe v. 416 Community Support for Women and Rosie Smythe, 2010 HRTO 1845

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawnett Rowe

Applicant

• and-

416 Community Support for Women and Rosie Smythe

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 9, 2010

Citation: 2010 HRTO 1845

Indexed as: Rowe v. 416 Community Support for Women

BACKGROUND

1This Interim Decision deals with an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on June 8, 2010 and alleges discrimination with respect to employment on the basis of race, colour, ancestry, place of origin and ethnic origin. The applicant alleges that she resigned her employment in May 2007 because of the respondents’ discrimination and further that the personal respondent interfered with an offer of employment with a prospective employer. This last alleged discriminatory incident was in and around late May 2007.

2Although this Application was filed approximately three years after the last alleged discriminatory incident, the applicant had originally filed a human rights complaint with the Ontario Human Rights Commission (“Commission”) in June 2007 alleging discrimination in employment on the basis of race and ethnic origin by the same respondents. That complaint has proceeded by way of a Transition Application, which was filed in May 2009. The substance of the Transition Application dealt with the circumstances of the applicant’s employment relationship with the respondents and did not include the allegations regarding the employment cessation and interference concerns.

3On February 23, 2010, an Interim Decision, 2010 HRTO 415, was issued with respect to the Transition Application. The Interim Decision pertained to the applicant’s request to add further particulars to her original Commission complaint. Alternate Chair Joachim found that while some of the additional particulars provided context to the original complaint, the following elements were outside the scope of the existing complaint:

[5] The applicant alleges that she resigned because of the alleged discrimination. This assertion was not found in the original complaint filed in June 2007 although she submitted the letter of resignation on May 17, 2007. In my view, the allegation that the alleged discriminatory treatment led to her resignation does not form part of the subject matter of the present Application.

[6] The applicant also seeks to add the allegation that the personal respondent interfered with respect to an alternative position offered by a new employer on May 17, 2007 with the result that the offer from the new employer was ultimately rescinded. None of this is set out in the original complaint and does not form the subject matter of the present Application. Nothing in this Interim Decision bars the applicant from making these allegations in a new complaint, subject to the requirements of a section 34 application.

4Subsequent to the Interim Decision, the applicant filed the current Application with respect to the above-noted allegations.

NOTICE OF INTENT TO DISMISS DUE TO DELAY

5On July 22, 2010, the Tribunal’s Registrar sent a Notice of Intent to Dismiss to the applicant which noted that, pursuant to section 34 of the Code, the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

6Section 34 of the Code states:

(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.

7The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

8The Tribunal has not yet delivered the Application to the respondents. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.

APPLICANT’S SUBMISSIONS

9The applicant filed written submissions on August 23, 2010, addressing both parts of the test for waiver of the one-year time limit under section 34. With respect to the first part of the section 34 test, the applicant submits that the delay in filing her Application was incurred in good faith. The applicant submits that when she filed her original complaint in June 2007 she was unrepresented and under the impression that she could elaborate on the discrimination allegations noted in the Commission complaint. The applicant indicates that, because she felt constrained by the two page form used by the Commission, she did not include all of the details of the alleged discrimination. The applicant states that she made inquiries of her rights and was left with the understanding that that she would be able to have her entire experience heard once the complaint reached the hearing stage.

10The applicant further indicates that it was clearly her intention to pursue all of her concerns in relation to the respondents and this is evidenced by the fact that in filing her Transition Application in March 2009 she made reference to the post-employment allegations in her remedy request. The applicant submits that her original complaint and Transition Application were filed in a timely manner and that appropriate steps were taken to include all particulars by way of the Request for an Order as determined by Alternate Chair Joachim. Lastly, the applicant submits that her counsel did not proceed sooner to make the Request because the applicant and counsel were occupied with preparing for the Transition hearing.

11With respect to the second part of the test that there is “no substantial prejudice” to any person affected by the delay, the applicant submits that there should be no prejudice to the respondents because the respondents have been aware of the allegations raised in the current Application since May 2009 when the original Commission complaint was converted into the Transition Application. Further, the respondents have been well informed of the allegations since the request to add further particulars in the Transition process.

DECISION

12In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

13An application will only be dismissed at a preliminary stage, prior to service on the responding party, 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. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

14The applicant submits the main reason for her delay was her belief that the issues would be dealt with through the original complaint and the Transition hearing. The applicant also submits that preparations for the Transition hearing delayed the filing of the current Application. With respect the applicant’s submissions regarding the latter basis (participation in the Transition process), it is noteworthy that efforts to pursue one’s rights elsewhere and/or late discovery of one’s rights, without more, have been found not to justify delay. See: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. Culture Link Settlement Services, 2010 HRTO 508.

15However, in light of the applicant’s submissions regarding her understanding of the Commission complaint, the respondents’ knowledge and advance notice to the allegations and little prejudice, I am satisfied that the Application should be served on the respondents and that they should be given an opportunity to address the issues. At this stage, with the applicant’s assertions unchallenged, it is not plain and obvious that the delay was not incurred in good faith. Accordingly, the Tribunal will continue to deal with the Application.

16The Tribunal shall deliver the Application, the Notice of Intent to Dismiss, the applicant’s submissions in response and a copy of this Interim Decision to 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 proceed with the Application because of delay, the applicant may be required to provide further evidence and submissions in support of her position.

17I am not seized of this matter.