André King v. Toronto District School Board, 2010 HRTO 1984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

André King

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Ena Chadha

Date: September 28, 2010

Citation: 2010 HRTO 1984

Indexed as: King v. Toronto District School Board

WRITTEN SUBMISSIONS BY

André King, Applicant ) Self-represented

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination and reprisal with respect to employment on the basis of race, colour and ancestry. The Application was filed on June 22, 2010. The allegations in the Application concern the termination of the applicant’s employment in 2003.

2On August 25, 2010, the Tribunal issued a Notice of Intent to Dismiss because the Application was filed more than one year after the last incident of discrimination. The Tribunal invited the applicant to file submissions within 30 days of August 25, 2010, explaining why the Application was filed beyond the one-year limitation period established under the Code.

3The Tribunal received the applicant’s written submissions on September 23, 2010.

DECISION

4Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

5The threshold question in applying section 34 to the circumstances is what constitutes the “incident” to which the Application relates. Although the applicant acknowledges that his employment was terminated in 2003, the applicant noted, in response to Question 7 of the Application, that the date of the last discriminatory incident was May 13, 2010. The applicant’s submissions do not refer to the May 13, 2010 and in no way explain why the applicant believes the 2003 termination is related to the May 13, 2010 date. The substance of the Application relates to the applicant’s experiences while employed with the respondent prior to 2003.

6The applicant’s submissions suggest that the applicant concedes his Application is beyond the timeline. The applicant submits that “I’m totally defeated on the ‘timeline issue’. No argument”. The applicant states that he was stressed following his dismissal. He also states he is not sure whether there is any substantial prejudice that will result from the delay. He acknowledges that in order to avoid the delay he would have had to “have done some kind of research into how to file such a complaint and in the process learn about ‘timelines’.”

7On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith. I find that the last incident of alleged discrimination cited in the Application occurred in 2003 when the applicant’s employment was terminated.

8The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

9The applicant implies that the delay in filing the Application was because he was unaware of his right to file a complaint. The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

10Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. While the applicant may well have experienced personal hardships following his dismissal, he has not established that he could not have pursued his rights within the timeline mandated by the Code. Accordingly, the Application, filed over one year later does not meet the requirements of section 34(1).

11It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

12The Application is dismissed.