Maraj v. Erin Mills Mitsubishi, 2011 HRTO 1689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aruna Maraj

Applicant

-and-

Erin Mills Mitsubishi, Nauman Bangash and Andrew Chung

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: September 14, 2011

Citation: 2011 HRTO 1689

Indexed as: Maraj v. Erin Mills Mitsubishi

1This is an Application filed on July 15, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2On August 12, 2011, the Tribunal issued a Notice of Intent to Dismiss, as it appeared that the Application was filed more than one year after the last incident of discrimination described in it. The last event of alleged discrimination is the applicant’s dismissal from employment on June 28, 2010.

3In the Application, the applicant provided no reasons for the delay. The applicant was directed to file submissions on the delay, and has sent a letter addressing the issue. In her letter, received by the Tribunal on September 8, the applicant states that the Application was filed late as her former lawyer indicated to her that she had two years to file the Application. She also states that prior to filing the Application, there had been correspondence between her lawyer and the respondents’ lawyer and she therefore does not believe there is any prejudice to the respondents as a result of the delay. The Application has also provided additional reasons for part of the delay.

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 a preliminary stage 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.

7Based on the information provided by the applicant, it is not plain and obvious to me that her delay in filing the Application was not incurred in good faith. Consequently, the Tribunal will continue, at this point, to process the Application.

8The Tribunal shall serve the Application and a copy of this Interim Decision on the respondents. 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 parties may be required to provide further submissions or evidence on the issues of whether the delay was incurred in good faith and whether substantial prejudice will result to any person affected by the delay.

9I am not seized of this matter.