Downer v. Little & Jarrett, 2010 HRTO 721

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Downer

Applicant

-and-

Little & Jarrett and Anthony Little

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: March 31, 2010

Citation: 2010 HRTO 721

Indexed as: Downer v. Little & Jarrett ________________________________________________________________

1This Application was filed on December 28, 2009 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It contains allegations of discrimination on the basis of race, colour and ethnic origin in the provision of goods, services, and facilities.

2The Application relates to incidents which allegedly occurred on November 21, 2008 and December 16, 2008. As it appeared that the Application was filed more than one year after the last incident of alleged discrimination, the Tribunal issued a Notice of Intent to Dismiss (‘Notice”). The Tribunal invited submissions from the applicant as to whether the Application is within the Tribunal’s power to decide pursuant to section 34 of the Code.

3Section 34 of the Code states:

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.

4The applicant responded to the Notice on March 1, 2010. He states that the delay in filing the Application was due to health concerns, a trip to Africa and a court date.

5The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

6In this case, the delay in filing the Application is short; only twelve days. The Tribunal has held that the length of the delay in filing an Application is a factor to be considered in determining whether such delay was incurred in good faith: Stathis v. Thyssenkrupp Fabco, 2009 HRTO 294.

7Importantly, whatever the duration of the delay, the applicant must nevertheless establish that it was incurred in good faith. This is because the Tribunal does not have the power to determine applications filed outside the time permitted by the Code unless the criteria set out in section 34(2) are met: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 20 and Moffat v. Northampton Group, 2010 HRTO 519.

8In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

9Dates scheduled in another proceeding are not generally a good faith reason for failing to file a timely Application: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. I am also not satisfied that a trip taken at some stage during the one year limitation period constitutes a good faith reason for the delay.

10In explaining the delay in filing the Application, the applicant briefly mentions “health concerns”. Based on the material before me, I am unable to determine whether the applicant’s health concerns constitute a good faith reason for the twelve day delay in filing the Application.

11Accordingly, within five days of the date of this Interim Decision, the applicant may file additional submissions regarding his health concerns and how they relate to the twelve day delay. If the applicant does not file additional submissions, the Tribunal will determine the issue of jurisdiction based on the information already filed with the Tribunal.

12I am not seized of this matter.