Casimir v. Double Diamond Acres, 2010 HRTO 2549

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julius Casimir

Applicant

-and-

Double Diamond Acres Ltd./Twin Peaks and Nick Mastronardi

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: December 31, 2010

Citation: 2010 HRTO 2549

Indexed as: Casimir v. Double Diamond Acres

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), filed on June 10, 2010. The applicant alleges that he was discriminated against on the basis of his marital status, race, colour, ethnic origin, place of origin and ancestry when he was terminated from his employment as a seasonal farm worker for the reason that he had married. The alleged incident occurred on June 15, 2007.

2As the Application was filed more than a year after the date of the alleged discrimination, the Tribunal issued a Notice of Intent to Dismiss ("NOID") directing the applicant to provide submissions on the issue of delay within 30 days from July 20, 2010.

3On November 25, 2010, the applicant filed submissions. In explaining the timing of his submissions, the applicant states that he only received notice of the NOID when he contacted the Tribunal to inquire as to the status of the Application in October and that the NOID was subsequently re-mailed to him. The Tribunal file confirms that the applicant inquired about the status of his Application on October 8, 2010, and that the NOID was subsequently resent to the applicant.

4Having regard to the foregoing, I am prepared to consider the applicant's submissions.

5Section 34 of the Code allows applications to be made within a one-year time limit although it also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

6Under section 34 (2), the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, 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.

7At this preliminary stage, an application will only be dismissed 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 dismissal for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

8In this case the applicant provides two reasons for the delay in filing the Application: that he was threatened by the personal respondent that he would be repatriated if he took action against the termination of his employment, and that as a migrant farm worker he was socially and politically excluded and therefore had difficulties exercising legal protections against discrimination. In his submissions, the applicant explains that as a migrant farm worker from St. Lucia he has no secure immigration status. The applicant asserts that employers of migrant farm workers are empowered to make unilateral decisions to terminate a worker's employment and repatriate them to their countries of origin. He states that it was only when he received assistance from a friend and migrant rights activist that he was able to develop the courage and confidence to report the incident.

9Based on the applicant's submissions alone, it is not plain and obvious to me that the delay in filing the Application was not incurred in good faith. Therefore, the Tribunal will continue to process this Application.

10The Tribunal shall serve the Application and a copy of this Interim Decision on the respondent. 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 Application is barred by section 34, the Tribunal may schedule a hearing for the purpose of hearing evidence and submissions on whether the delay was incurred in good faith and whether substantial prejudice will result to any person affected by delay.

11I am not seized.