HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sohiala Khaksar
Applicant
-and-
International Clothiers
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Khaksar v. International Clothiers
1The applicant filed an Application with the Tribunal on March 4, 2011 pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in the employment on the basis of disability. The Application indicates that the last incident of discrimination was in September 2008.
2The applicant alleges that in May 2008 she was involved in a car accident and unable to work until the fall of 2008. The applicant alleges that, upon returning to work in the fall of 2008, she was denied her store manager position and instead given part-time hours. The applicant alleges that she attempted to address this issue with head office. The applicant alleges that in May 2010 she was required to take a leave of absence for emergency travel and that when she attempted to return to work she was advised her employment was terminated because of her extended absence. The applicant alleges that she also attempted to address this issue with head office to no avail.
3On April 26, 2011, the Tribunal issued a Notice of Intent to Dismiss the Application, which noted that, pursuant to section 34 of the Code, the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.
4The applicant filed submissions in response to the Notice. The applicant alleges her employment was terminated in mid-July 2010. The applicant alleges that after her termination she attempted to resolve the issue with head office and was told they would call her back to schedule her for work. The applicant alleges that she waited for 3–4 months and then attempted to file an application with the Tribunal.
DECISION
5An application will only be dismissed at a preliminary stage, before it is delivered to respondents, if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction, see for example, Carbone v. Bruzzese, 2009 HRTO 2042. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.
6I am satisfied that the Application should be served on the respondent and that the respondent should be given an opportunity to address the allegations and any jurisdictional issues. It appears that the applicant cited the date of her initial return to work as the last incident of discrimination. However, it appears that the applicant’s employment was terminated in July 2010, which would appear to be within the Code timeline.
7Based on the information provided by the applicant, it is not plain and obvious that the Application is out of time. Accordingly, the Tribunal will continue to deal with the Application. However, I note this is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application with respect to the issue of delay and also with respect to whether there is a nexus to a Code ground. The applicant indicates that she was absent for “emergency travel” and that she was terminated for that extended absence. It is unclear whether or not the applicant is alleging that the termination was based on a Code ground or tainted by Code considerations. The parties may be requested to address these issues after the respondent has filed a Response.
8The Registrar is directed to serve the Application and a copy of this Interim Decision on the respondent, along with a copy of the applicant’s submissions in response to the Notice.
9I am not seized of this matter.
Dated at Toronto, this 7th day of June, 2011.
”signed by”_______________
Ena Chadha
Vice-chair