Maria Penalosa v. Teva Canada Limited and Urmilla Singh, 2011 HRTO 172

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Penalosa

Applicant

-and-

Teva Canada Limited and Urmilla Singh

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 24, 2011

Citation: 2011 HRTO 172

Indexed as: Penalosa v. Teva Canada

WRITTEN SUBMISSIONS BY

Maria Penalosa, Applicant ) Self-represented

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on August 25, 2010, alleging discrimination in employment by the respondents on the basis of disability. The applicant indicated in her Application that the last incident of alleged discrimination took place on August 6, 2008.

2A Notice of Intent to Dismiss ("NOID") was issued on November 29, 2010 indicating that the Application appears to be outside the Tribunal's jurisdiction because it was filed more than one year after the last incident of alleged discrimination.

DELAY

3Section 34 states, in part:

(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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, "the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim." When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

5In response to the NOID, the applicant indicated that she erred when she indicated that the incident that took place on August 6, 2008, which is the date of her last interaction with the personal respondent, her supervisor. Following that date, she was off work on an indefinite leave as the result of a disability, which she alleges was exacerbated by work. On August 24, 2009, a year later, she alleges she was called into a meeting at which time her employment with the corporate respondent was terminated. She attempted to file her Application in the evening of August 24, 2010, but because the Tribunal's offices were closed, her Application was deemed filed on August 25, 2010.

6Given the applicant's submissions I am not satisfied it is plain and obvious that the Application is barred by virtue of delay. Accordingly, the Tribunal will continue to deal with the Application.

7This is not a final decision regarding the Tribunal's jurisdiction in respect of this Application. I am not seized of this matter.