Human Rights Tribunal of Ontario
B E T W E E N:
Yolanda Bogatin
by her litigation guardian the Public Guardian and Trustee
Applicant
-and-
CML Healthcare Inc.
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Bogatin v. CML Healthcare
1This is an Application filed on December 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant, through her litigation guardian alleges that she suffered discrimination in respect of employment because of disability.
2On February 19, 2010, the Tribunal issued a Notice of Intent to Dismiss, in which it directed the applicant to provide submissions explaining the delay in filing the Application as the applicant had indicated that the last event occurred on November 22, 2007.
3In response to the Notice, counsel retained by the applicant’s litigation guardian filed extensive submissions on March 22, 2010. Counsel argues that there was no delay as the applicant was incapable of discovering the facts giving rise to the Application for reasons relating to her disability and that it would be contrary to the purpose and spirit of the Code to apply s.34(1) to the applicant’s circumstances. In the alternative, she argues that if there is found to be a delay in filing, it was incurred in good faith and the respondent would not be substantially prejudiced if the Application were to proceed.
4An Application will only be dismissed at a preliminary stage, before it is served on the respondents, 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 decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.
5Section 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.
6Based on the information provided by the applicant in the narrative and the submissions made by counsel, which are at this stage unchallenged, it is not plain and obvious that there was a delay in filing and, if there was a delay, that it was not incurred in good faith or that the respondents will suffer substantial prejudice. Consequently the Tribunal will continue, at this point, to process the Application.
7The Tribunal shall serve the Application, the submissions made by counsel 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 Tribunal should not accept the Application because of delay, the applicant may be required to provide further evidence and submissions in support of her position.
8I am not seized of this matter.
Dated at Toronto, this 19th day of April, 2010.
“Signed by”
Jay Sengupta
Vice-chair```