Human Rights Tribunal of Ontario
B E T W E E N:
Waris Khan
Applicant
-and-
City of Toronto
Respondent
DECISION
Adjudicator: Sherry Liang
Indexed as: Khan v. Toronto (City)
1This is an Application filed on November 12, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2The applicant states that the respondent removed trees and other vegetation on his property in January 2006. He alleges that the respondent’s actions were discriminatory on the basis of race, colour and age, stating that “I believe that I were of another race this would not have been done/or in this manner” and that “if I was younger I would not have faced this discrimination.”
3On January 14, 2010, the Tribunal issued a Notice of Intent to Dismiss to the applicant. It directed the applicant to provide submissions responding to certain issues raised in the Notice, relating to the timeliness of the Application and the applicant’s prior complaint to the Ontario Human Rights Commission (the Commission). The Notice advised the applicant that if he did not make submissions by the required time, the Tribunal would make its decision based only on the information in the Application or may consider the failure to respond as an abandonment of the Application.
4The applicant did not provide any submissions and by decision dated March 1, 2010, the Tribunal deemed the Application abandoned and dismissed it.
5The applicant filed a Request for Reconsideration of the Tribunal’s decision. As it was filed beyond the 30 day time limit specified in the Tribunal’s Rules for such a Request, the Tribunal directed the applicant to explain the delay in filing his Request for Reconsideration. Further, without determining whether there were grounds to reconsider its decision, the Tribunal directed the applicant to provide submissions on the issues raised in the Notice of Intent to Dismiss.
6For the reasons below, the Request for Reconsideration is dismissed.
7First, the Tribunal finds no reason to waive the requirement under its Rules that a Request for Reconsideration be filed within 30 days of a final decision. The applicant states that he went “home” and only received the decision on his return. He clarified, in response to the Tribunal’s direction, that he was away from home (it appears overseas) between February 9, 2010 and May 18, 2010. Prior to his departure, the applicant had received the Tribunal’s Notice of Intent to Dismiss. He had received a letter from a legal clinic on February 3, 2010 providing its opinion on the Application. The applicant was aware that his deadline for providing submissions was March 14, 2010 yet did not file submissions in response to the Notice, ask for an extension of time to provide submissions, or provide the Tribunal with a forwarding address prior to his departure.
8The applicant has not provided any reasons why he could not have arranged for his correspondence to be forwarded to him while he was away from home or notified the Tribunal of a difficulty in receiving correspondence during his absence.
9In the circumstances, I am not convinced that the applicant acted with diligence in corresponding with the Tribunal and there is no good reason to waive the 30-day time limit for filing a Request for Reconsideration. The Request is dismissed on that basis.
10Even if there had been a basis to accept the Request, the applicant has also shown no reasons why he could not have provided submissions in response to the Tribunal’s Notice of January 14, 2010.
11In any event, it is evident on the material before me that this Application is barred by section 53(8) of the Code, which states:
No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.
12The effect of section 53(8) is that an applicant may not file an application to the Tribunal under section 34 of the Code if it is based on the same or substantially same subject-matter as a complaint previously filed with the Commission. The material before me indicates that the applicant made a complaint to the Commission about the same subject matter of this Application. This complaint, which is dated March 20, 2007, alleged that the removal of vegetation from the applicant’s property in early 2006 was discriminatory. The Commission decided not to deal with the complaint, on the basis that there was no reasonable ground upon which the complaint could be maintained, and as well because the complaint was filed beyond the time limit for making such a complaint to the Commission and there was no evidence that the delay was incurred in good faith. The Commission subsequently confirmed its decision in response to a request for reconsideration from the applicant.
13On these facts, there is no doubt that section 53(8) applies to bar this Application.
14The Request for Reconsideration is dismissed.
Dated at Toronto this 13th day of September, 2010.
“Signed By”
Sherry Liang
Vice-chair