HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sam Battaglia

Applicant

-and-

Maplehurst Correctional Complex and Chris Tyrell

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 2, 2010

Citation: 2010 HRTO 470

Indexed as: Battaglia v. Maplehurst Correctional Complex

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), on June 8, 2009. He alleges that the respondents discriminated against him with respect to services because of creed and specifically that the respondents did not return property owed to him when he was released from custody in July 2007.

BACKGROUND

2Before sending the Application to the respondents, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant advising that it appeared the Application was outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination. The Tribunal directed the applicant to provide submissions to address the delay issue. The applicant provided submissions in which he stated that he had been incarcerated in another province since his involvement with the respondent. Following those submissions, the Tribunal issued an Interim Decision, 2009 HRTO 1167, (“Interim Decision”) in which it determined that the delay in filing the Application might well have been incurred in good faith. The Tribunal determined that, at that point, it would continue to process the Application and it was sent to the respondents for response.

3The respondents filed a joint Response and a Request for Order During Proceedings (“RFOP”), both dated August 28, 2009. In the RFOP, the respondents request the Tribunal to dismiss the Application as being outside the Tribunal’s jurisdiction pursuant to Rule 13. The respondents submit that there are no prima facie facts in the Application alleging that the Code has been violated. The respondents submit that “there is no basis that incarceration postpones a limitation period” which would justify the filing of the Application beyond the one year limitation period set out in section 34 of the Code. The respondents also submit that they have been “substantially prejudiced” by the late filing of the Application and that the Interim Decision did not address the issue of the respondents’ prejudice.

4On January 4, 2010, the Tribunal sent the joint Response to the applicant, advised that he could file a Reply, and directed him to address the respondents’ submissions that the issues raised in the Application are not within the Tribunal’s jurisdiction. The applicant filed a Reply in which he made comments about the property he alleges the respondents failed to return to him. The applicant did not address the jurisdictional issues identified by the respondents.

PRELIMINARY OBJECTIONS

5At this preliminary stage of the proceeding, there is no “evidence” before the Tribunal, but only “allegations” as set out in the Application, joint Response and Reply. As such, the Tribunal must assess a request to dismiss an application because the application allegedly fails to make out a prima facie case of discrimination on the basis of the allegations and information put forth by the parties in their materials. In order to proceed with an application, it is sufficient at this stage if the applicant raises allegations which, if accepted as true, would be enough to establish a prima facie case: see Drenic v. Governing Council of the Salvation Army, 2009 HRTO 1059 at para. 7.

6Section 34 of the Code provides:

(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.

7In the Interim Decision, the Tribunal determined that the Application could, at that point, continue to proceed. However, the Tribunal noted, “This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code”.

8In the circumstances it appears most fair, just and expeditious to consider these preliminary issues in a hearing conducted by conference call. The hearing is not expected to require more than one hour. If either party wishes to rely on any additional written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party and file it with the Registrar within 21 days of the date of this Interim Decision. The Tribunal’s case law is found at www.CanLII.org.

9Following the conference call hearing, the Tribunal will determine whether or not there is a basis to proceed with the Application and may make further directions.

ORDER

10The Tribunal will schedule a one hour conference call hearing to hear the parties’ submission on:

a. whether the Application raises a prima facie violation of the Code;

b. whether the applicant’s delay in filing his Application was made in good faith and that no substantial prejudice will result to any person affected by the delay.

11The following directions shall apply to the conference call hearing:

a. The applicant should be prepared to proceed first at the conference call hearing, by responding to the written arguments of the respondent on the above questions.

b. Any party that wishes to rely on any written materials (including written submissions, documents or case law) or rely on any facts not obtained in the Application, Response, Request for Order During Proceedings and Response to a Request for Order During Proceedings must deliver them to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

12The Tribunal draws the applicant’s attention to the Applicant’s Guide and the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario, available on the Tribunal’s website or from the Registrar’s office.

13I am not seized with this matter.