Gorman v. Pressure Pipe Inspection Company, 2011 HRTO 1202

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Gorman Applicant

-and-

Pressure Pipe Inspection Company Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: June 22, 2011 Citation: 2011 HRTO 1202 Indexed as: Gorman v. Pressure Pipe Inspection

WRITTEN SUBMISSIONS BY:

Richard Gorman, Applicant ) Self Represented

BACKGROUND

1The applicant filed this Application on May 5, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to disability having been terminated by the respondent employer on April 23, 2010.

2On June 2, 2011, the Tribunal issued a “Notice of Intent to Dismiss” (“NOID”) in which it indicated that the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) because it was filed more than one year after the last incident of discrimination described in the Application.

3On June 7, 2011, the applicant provided written submissions to the Tribunal regarding the timeliness issue. In his submissions, the applicant states that he sent the Application to the Tribunal via United States Postal Service “Priority Post” at Walterboro, South Carolina, sometime between March 28 and April 1, 2011. He further states that the Postal officials promised delivery to the Tribunal within 5 days.

DECISION

4Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34. (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.

5Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

6An 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. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

7I find that the present circumstances do not make out a “plain and obvious” lack of jurisdiction based on lack of timeliness. On the basis of the applicant’s assertions, which are at this stage unchallenged, the delay may have been caused by factors beyond his control.

8The Tribunal shall serve the Application, any correspondence between the Tribunal and the applicant in respect of the delay issue, and a copy of this Interim Decision on the respondent. However, it should be noted that 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 (Tribunal Rule 13.5), nor is it a final decision with respect to the issue of whether the Application is barred by section 34 of the Code. If the respondent takes 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 his position.

ORDER

9The Tribunal shall proceed with the processing of the Application.

10I am not seized.