Winnie Yebuga v. Cineplex Entertainment Corporation and Robert Gosek, 2011 HRTO 1823

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Winnie Yebuga

Applicant

• and-

Cineplex Entertainment Corporation and Robert Gosek

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 6, 2011

Citation: 2011 HRTO 1823

Indexed as: Yebuga v. Cineplex Entertainment Corporation

1This Interim Decision deals with an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on July 29, 2011 and alleges discrimination with respect to employment on the basis of sex. The applicant alleges that she was subjected to sexual solicitation by the personal respondent and that the corporate respondent failed to protect her from a poisoned work environment.

2The applicant alleges that the last discriminatory incident by the personal respondent was in February 2010, following which she reported her concerns to the corporate respondent in June 2010 and resigned on June 27, 2010. The applicant was rehired by the corporate respondent in November 2010 and at that time discovered that she would be supervised by an individual who she alleges was complicit and/or condoned the sexual solicitation. The applicant requested a transfer on November 23, 2010 on the basis of what she perceived was a poisoned work environment. The applicant alleges that a representative of the corporate respondent treated her as if it was her fault that she returned to the workplace and her request for a transfer was denied on December 3, 2010 causing her to resign on the same day. The applicant alleges that she quit her job because the corporate respondent refused to provide her with a safe work environment.

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.

NOTICE OF INTENT TO DISMISS DUE TO DELAY

4On June 8, 2011, the Tribunal Registrar sent a Notice of Intent to Dismiss to the applicant which noted that, pursuant to section 34 of the Code, 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.

5Section 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.

6The applicant provided her submissions to the Tribunal on September 27, 2011. The applicant asserts that the discriminatory events occurred within one year of filing of the Application. She submits the last incident of discrimination involved the events of December 3, 2010 when the representative of the corporate respondent appeared to blame her for the situation and refused to transfer her out of the alleged poisoned work environment. The applicant alleges that there is no prejudice given that all of the incidents were reported to the respondents and documented by the respondents.

7An application will only be dismissed at a preliminary stage, prior to delivery 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: 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.

8I am satisfied that the Application should be delivered to the respondents. At this preliminary stage, the applicant’s submissions appear to satisfy the requirement of section 34(1). Based on the alleged chronology of events, it appears the Application comes within the timeframe described in section 34 of the Code as the last alleged event took place on December 3, 2010 and the Application was filed on July 29, 2011. Accordingly, the Tribunal will continue to deal with the Application.

ORDER

9The Tribunal will deliver the Application, the Notice of Intent to Dismiss, the applicant’s submissions and a copy of this Interim Decision on the respondents. This is not a final decision with respect to the issue of jurisdiction.

10I am not seized of this matter.