HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Still

Applicant

-and-

El-Met Parts Inc.

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: September 14, 2011

Citation: 2011 HRTO 1694

Indexed as: Still v. El-Met Parts Inc.

WRITTEN SUBMISSIONS BY:

Donald Still, Applicant ) Andrew C. Bome, Counsel

El-Met Parts Inc., Respondent ) Naomi E. Calla, Counsel

BACKGROUND

1The applicant filed this Application on February 15, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination in employment on the grounds of sexual orientation.

2In its Response filed June 24, 2011, the respondent requested that the Application be dismissed on the basis that, among other things, the Application is untimely and hence not within the jurisdiction (power to decide) of the Tribunal. The respondent provided written submissions in support of its Request.

3The Tribunal Issued a Case Assessment Direction (CAD) on August 5, 2011, directing the applicant to provide submissions on the delay issue.

4The applicant responded on August 22, 2011. In his submissions the applicant states:

The conduct that Mr. Still has complained about has continued. In paragraph #2 of Mr. Still’s application, he lists a number of specific incidents where he felt that he was singled out because of his homosexuality, including an incident where the word “rat” was written on his time card. That is the last incident in a series of incidents and that incident happened on May 8, 2010. Attached please find a copy of the time card which clearly is marked “May 10, 2010….”.

ANALYSIS

5Section 34 of the Code provides:

(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.

6Therefore under 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. The applicant has alleged that a number of incidents took place over a period of time; incidents which he alleges were discriminatory. At least one of these incidents appears on its face to be timely. Based on the applicant’s submissions, I find that the present circumstances do not make out a “plain and obvious” lack of jurisdiction based on delay.

7In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal’s Rules of Procedure provide it with the discretion to determine and direct the order in which issues in a proceeding, including issues considered by a party to be preliminary, will be considered and determined: Rule 1.7(g). In my view, the evidentiary issues relating to delay and the substantive issues of whether or not discrimination can be made out are closely related and it is not reasonable or practical to decide them separately. Accordingly, on the basis of the material before me, I find that it would not be fair or just to decide the question raised by the respondent at this stage, and on the basis of the written submissions.

ORDER

8That portion of the respondent’s Request for Order During Proceedings dismissing the Application based on it being untimely is denied. However, a decision to continue to deal with the Application at this time is not a final decision regarding the Tribunal’s jurisdiction in respect to all or part of the Application.

9The parties have both indicated their willingness to participate in the Tribunal mediation process. The Tribunal will therefore schedule a mediation session as the next step in the processing of the Application.

10If the Application is not settled by way of mediation the Tribunal will proceed to deal with the outstanding preliminary issues prior to the matter being scheduled for a hearing on its merits.

11I am not seized.