Jeff Servos v. Brantford Police Service, 2010 HRTO 1857

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeff Servos

Applicant

-and-

Brantford Police Service

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 10, 2010

Citation: 2010 HRTO 1857

Indexed as: Servos v. Brantford Police Service

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 March 9, 2010 and alleges discrimination with respect to employment on the basis of disability. The applicant alleges that he was compelled to resign his employment because of the respondent's discrimination and failure to accommodate his disability. The Application indicates that the last alleged discriminatory incident was February 28, 2009, when the applicant received his final pay cheque.

2The Tribunal has not yet delivered the Application to the respondent. 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.

NOTICE OF INTENT TO DISMISS DUE TO DELAY

3On June 2, 2010, the Tribunal 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.

4Section 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.

APPLICANT'S SUBMISSIONS

5The applicant wrote to the Tribunal on July 1, 2010. The applicant submits that the delay in filing his Application was incurred in good faith. The applicant submits that subsequent to his February 2009 resignation he was dealing with criminal proceedings arising out of the facts which form the basis of the Application. The applicant further explains that he was admitted into a six month addiction treatment program from June 9, 2009 to November 20, 2009, which involved "limited access to the outside world" and that he was not mentally or emotionally fit to start the Tribunal's application process during this time.

DECISION

6Although the Application is filed only nine days after the one year deadline the applicant must nevertheless establish that the delay was incurred in good faith. In 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.

7An 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.

8I am satisfied that the Application should be served on the respondent and that the respondent should be given an opportunity to address the issues. The applicant submits the main reason for his delay was seeking treatment for his disability at a specialized facility which restricted his ability to engage with the "outside world". As such, it appears that the applicant was unable to act in a timely fashion due, in part, to his disability. Based on the information provided by the applicant, it is not plain and obvious that his delay in filing the Application was not incurred in good faith. Accordingly, the Tribunal will continue to deal with the Application.

9The Tribunal shall serve the Application, the applicant's submissions 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 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.