Faoro v. Claire’s Stores, 2010 HRTO 500

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Faoro Applicant

-and-

Claire’s Stores Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: March 5, 2010 Citation: 2010 HRTO 500 Indexed as: Faoro v. Claire’s Stores

1The applicant’s representative filed an Application on her behalf (Forms 1 and 4) under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 11, 2009, which alleges that the respondent discriminated against her with respect to employment because of her disability.

2The Tribunal has not delivered the Application to the respondent yet. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.

3Section 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.

4In section 7(c) of the Application (“What was the date of the last event?”), the applicant’s representative wrote: June 26, 2006. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), he wrote that the applicant was unable to file her Application in a timely manner because of a lack of capacity related to her disability.

5On November 3, 2009, the Tribunal’s Registrar issued the applicant and her representative a Notice of Intent to Dismiss, which informed them that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant and her representative to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

6The applicant’s representative filed written submissions on December 3, 2009 and February 24, 2010, which state that the delay in filing the Application was incurred in good faith because the applicant received a discriminatory termination of employment letter from the respondent in June 2006, but was unable to deal with it and file a human rights complaint because of a lack of capacity related to her disability. The applicant’s representative further states that he recently discovered and reviewed the letter, and then filed this Application with the Tribunal on her behalf. He also attached to his submissions medical documentation about the applicant’s disability.

7Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires her to file written submissions. Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction: Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63. A decision to continue to deal with an Application is not a final decision regarding the Tribunal’s jurisdiction in respect of the Application (Rule 13.5).

8In my view, based on the applicant’s representative’s submissions and attached medical documentation about her disability and related lack of capacity, it is not plain and obvious that the applicant’s delay in filing the Application was not incurred in good faith. Furthermore, there is no evidence at this preliminary stage of the proceeding that substantial prejudice will result to any person affected by delay. However, this is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code because it is untimely.

9The Tribunal shall serve the Application, the applicant’s representative’s written submissions and attached medical documentation, and a copy of this Interim Decision on the respondent. The respondent is directed to file a full Response to the Application, which includes submissions on the timeliness issue, and the applicant’s representative is directed to file a full Reply to the Response, which includes submissions in reply to the respondent’s submissions on the timeliness issue.

10In my view, it will be difficult to determine the timeliness issue without an oral hearing where the applicant, her representative and/or her doctor will be expected to answer questions about her disability and related lack of capacity. The respondent may also call a medical expert to testify about the applicant’s disability and her capacity to file a human rights Application during the relevant time period.

11After the Response and Reply are received, the Tribunal’s Registrar will schedule a half-day hearing to hear oral submissions and evidence from the parties only with respect to the preliminary issue of timeliness. The parties are directed to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure on disclosure of documents and witnesses only with respect to the timeliness issue.

12I am not seized of this matter