HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nelson Pelletier
Applicant
-and-
Nortrax Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Pelletier v. Nortrax Canada
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on April 5, 2011, alleging discrimination and reprisal with respect to employment on the basis of race and disability. The applicant alleges that the respondent failed to provide him with appropriate workplace accommodation of his disability. The last alleged discriminatory incident was in May 2008, when the applicant’s employment ended because of the lack of modified work.
2On June 16, 2011, the Tribunal issued a Notice of Intent to Dismiss to the applicant which noted that 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.
3The Tribunal has not yet delivered the Application to the respondent. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.
ANALYSIS
4Section 34 of the Code states:
(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.
5The applicant indicates that the delay was incurred, in part, because his counsel was negotiating with the employer and because of his mental condition. The applicant indicates that his disability has had a negative impact on his cognitive abilities and that this coupled with depression makes it difficult for him to carry out daily functions. The applicant included information from his wife describing his condition, including concerns regarding the applicant’s difficulty in understanding certain information.
6This Application was filed approximately three years after the last alleged discriminatory incident. The 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.
7In determining the issue of good faith, factors for consideration include 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. See Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.
8An application will only be dismissed at a preliminary stage, prior to service on the responding party, 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. See 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.
9The applicant submits two reasons for the delay: (i) mental health concerns and (ii) on-going negotiations with the employer. With respect the applicant’s submissions regarding the latter ground (delay due to negotiations), it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; and Kelly v. CultureLink Settlement Services, 2010 HRTO 508.
10In light of the applicant’s submissions regarding his mental health and in the absence of any information with respect to prejudice, a determination with respect to delay cannot be made at this stage. It may well be that the delay in filing the Application was incurred in good faith; however, before determining whether or not the delay was incurred in good faith, the Tribunal must also consider whether substantial prejudice will result to anyone affected by the delay. Accordingly, the Tribunal will continue to deal with the Application and the respondent will be given an opportunity to make submissions on whether the applicant ought to be permitted to proceed with the Application under section 34(2) of the Code.
ORDER
11The Tribunal will deliver a copy of the Application to the respondent. The respondent is directed to file, along with its Response, written submissions on whether the delay in filing the Application was incurred in good faith and whether substantial prejudice will result to anyone affected by the delay within the meaning of section 34(2).
12This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application. I am not seized of this matter.
Dated at Toronto, this 11th day of August, 2011.
”signed by”____________
Ena Chadha
Vice-chair