David Mornix v. JT Plucker’s, 2010 HRTO 2297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Mornix

Applicant

-and-

JT Plucker’s

Respondent

decision

Adjudicator: Naomi Overend

Date: November 18, 2010

Citation: 2010 HRTO 2297

Indexed as: Mornix v. JT Plucker’s

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”) alleging discrimination in contracts on the basis of race and colour. In its Response, the respondent requests that the Application be dismissed on the basis that the applicant filed a Small Claims Court action that may have appropriately dealt with the substance of the Application. At the time, the action was ongoing.

2The Tribunal issued a Case Assessment Direction (“CAD”) asking their parties for written submissions on the following issues

(a) The respondent’s request to dismiss the Application because another proceeding has appropriately dealt with the substance of the Application;

(b) Whether, in the alternative, the Application should be deferred pending the completion of that other proceeding; and

(c) Whether the Tribunal should dismiss the Application for delay.

3The applicant did not file any written submissions in response to the CAD and the time for so doing has passed. The respondent filed written submissions on the dismissal issue alone. The information provided by the respondent on the other proceeding is insufficient, and the Tribunal is unable to make any further determination about whether the other proceeding might have dealt with the substance of the Application.

Delay

4On its face, the Application was filed more than one year after the last incident to which the Application relates. The applicant states (in answer to question 7) that the last event about which he is complaining occurred on April 5, 2008, more than a year before he filed his Application on April 27, 2009. Section 34 states, in part:

(1) If a person believes that any of her 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.

5Where, as is the case here, the Application was filed more than a year after the events described in it, the Tribunal is without jurisdiction to proceed with the Application unless it “is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6The applicant provided no submissions on the reason for the delay and, accordingly, the Tribunal has nothing on which to satisfy itself that the delay was incurred in good faith. Given that more than one year elapsed between the events and the filing of the Application, and given the absence of a good faith reason for that delay, the Tribunal is without jurisdiction to proceed.

7The Application is, therefore, dismissed.