HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Suraj Persad
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Persad v. Toronto District School Board
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 June 15, 2011, alleging discrimination in employment on the basis of creed and ethnic origin. The applicant indicated in his Application that the last incident of alleged discrimination took place on February 3, 2010, approximately 16 months prior to his Application being filed.
2A Notice of Intent to Dismiss (“NOID”) was issued on August 25, 2011 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. The applicant filed submissions in response to the NOID on September 23, 2011.
DECISION
3An application will only be dismissed at a preliminary stage, before it is served on respondent, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction.
4Section 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.
5As 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.
6The applicant is a teacher with the respondent Board. His submissions indicate that when he contacted the Ontario Secondary School Teachers Federation District 12 (“OSSTF”), he indicated that he thought this matter was more appropriately dealt with by way of an application to this Tribunal, which he expected the OSSTF to undertake on his behalf. Instead, they filed a grievance, which was ultimately unsuccessful. His submissions contain a number of emails to his OSSTF representative in which he makes this suggestion. If he received any response from the OSSTF with respect to this suggestion, they are not included.
7The applicant further submits that he contacted the Human Rights Legal Support Centre on May 20, 2010 about filing an application as an individual and states he was told that he should initially pursue his matter through the grievance process. Once he learned that his grievance was unsuccessful on May 10, 2011, he again contacted the Legal Support Centre and was advised to submit an application. This was apparently done in a prompt fashion after speaking with staff there.
[8] While the applicant submits that there was no delay in filing his Application, this is not supported by the facts. However, on the basis of his submissions, it is not plain and obvious that the delay was not incurred in good faith. Accordingly, the Tribunal will continue to deal with the Application.
[9] This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application.
ORDER
[10] The Tribunal orders as follows:
(i) The Registrar will forward a copy of this Interim Decision, the Application, the NOID and the applicant’s submissions in response to the NOID to the respondent, and all correspondence between the Tribunal and the applicant on the jurisdictional issue; and
(ii) The respondent is required to file its Response no later than 35 days after the Tribunal sends a copy of this Interim Decision and the accompanying documents.
[11] I am not seized of this matter.
Dated at Toronto, this 12th day of October, 2011.
‘Signed by”
Naomi Overend
Vice-chair