Surh v. Scarborough Town Centre Holdings, 2011 HRTO 1105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doug Surh Applicant

-and-

Scarborough Town Centre Holdings Inc. (958902 Ontario Inc.) Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: June 7, 2011 Citation: 2011 HRTO 1105 Indexed as: Surh v. Scarborough Town Centre Holdings

WRITTEN SUBMISSIONS BY:

Doug Surh, Applicant ) Self Represented Scarborough Town Centre Holdings Inc. ) Robb A. Macpherson, Counsel (958902 Ontario Inc.), Respondent )

1The applicant filed this Application on November 30, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination with respect to services on the grounds of race, colour, ethnic origin, sex, and reprisal.

2In their Response filed March 8, 2011, the respondents made a Request for Order During Proceedings arguing that the Application be dismissed on the basis that the Application is untimely and hence not within the jurisdiction (power to decide) of the Tribunal. The respondents provided written submissions in support of their Request.

3The jurisdictional issue was identified by the Tribunal in a Case Assessment Direction, which was sent to the applicant on April 13, 2011, requesting submissions from the applicant.

4On May 24, 2011, the applicant provided written submissions to the Tribunal regarding the timeliness issue.

Decision

5The applicant’s allegations stem from an alleged altercation between the applicant and a security guard in the employee of the respondent on the respondent’s property. Both the Application and the applicant’s further submissions identify the date of the incident as December 12, 2009. However, the applicant’s submissions also refer to an earlier encounter between the applicant and the respondent’s security personnel the date of which the applicant advises was February 29, 2009.

6The respondent makes the following submission in support of its request to dismiss:

As part of their comprehensive training, the Security Officers at STC are trained to maintain a regular account of incidents which occur at the STC during each shift. The Security Officers are provided with a memo book where they make hand-written notations of incidents which occur during the course of their shifts. At the end of the Security Officer’s shift, or at a reasonable time thereafter, Security Officers are required to transcribe incidents in the STC’s electronic record keeping system.

7The respondent goes on to state that a search of its electronic records reveals the only incident involving its security personnel and the applicant occurred on February 28, 2008. The respondent therefore argues, in essence, that because it has no record of an incident occurring on December 12, 2009, no such incident occurred. Therefore, it argues, the applicant must be referring to the February 2008 encounter in his Application and therefore the Application is untimely.

8The Tribunal finds that, whether or not an earlier encounter took place between the applicant and the respondent’s security personnel (whether in February 2008 as asserted by the respondent or February 2009 on the applicant’s version) is irrelevant to the present analysis. What is important is that the applicant confirms in his submissions that his Application alleges a discriminatory event taking place in December 2009, which therefore means that his Application was made within the one year time limit.

9It may be that the respondents will argue that no event at all took place in December 2009 and the Applicant will maintain that an event did take place at this time. Such a material dispute would be one which would require a finding of fact more appropriately made in the context of full submissions and evidence. An Application will only be dismissed at this stage of the proceedings in all or in part if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction. The Tribunal finds that the present circumstances do not make out a “plain and obvious” lack of jurisdiction based on lack of timeliness.

10The respondent’s Request for Order During Proceedings is dismissed. However, a decision to continue to deal with an application in these circumstances is not a final decision regarding the Tribunal’s jurisdiction in respect to the application (Rule 13.5).

Order

11The Tribunal shall proceed with the processing of the Application.

12I am not seized.