HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anibal Zelaya
Applicant
-and-
Braken-Metal Foundry a.k.a. A.G. Anderson
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Date: October 20, 2011
Citation: 2011 HRTO 1900
Indexed as: Zelaya v. Braken-Metal Foundry
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on August 26, 2011, alleging discrimination with respect to employment on the basis of disability.
2The applicant alleges that the respondent failed to provide him with appropriate modified work. The Application notes that the applicant was last employed by the respondent in February 2009, at which time he was placed on temporary layoff.
3On September 6, 2011, the Tribunal issued a Notice of Intent to Dismiss to the applicant which noted that 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.
4The applicant filed submissions on September 27, 2011. The applicant submits that the Application is not out of time because the discrimination is on-going and as recent as January 2011.
5The 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.
ANALYSIS
6Section 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.
7The applicant submits that the discrimination is on-going because the respondent continues to deny him reintegration. The applicant acknowledges that he was placed on temporary layoff in February 2009 and permanently laid off nine months later; however, he submits that he and a transition worker of the Workplace Safety and Insurance Board met with the employer in December 2010 and January 2011 and during these meetings the respondent refused to return him to work. In his submissions in response to the Notice of Intent to Dismiss, the applicant alleges that in the January 2011 meeting the respondent’s representative stated the applicant was “not a good asset to the company anymore” because of the applicant’s injuries.
8An application will only be dismissed at a preliminary stage, prior to service 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. See 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, including with respect to the issue of delay.
9In light of the applicant’s submissions regarding the December 2010 and January 2011 chronology of events and in the absence of any information with respect to prejudice, it is not plain and obvious that the Application should be dismissed at this stage on the basis of delay. It may well be that the discrimination is on-going or that delay in filing the Application was incurred in good faith or that there is no substantial prejudice to anyone affected by the delay.
10Accordingly, the Tribunal will continue to deal with the Application and the respondent will be given an opportunity to make submissions on whether the applicant ought to be permitted to proceed with the Application.
ORDER
11The Tribunal orders as follows:
The Tribunal will deliver a copy of the Application, the Notice of Intent to Dismiss, and the applicant’s submissions to the respondent;
The respondent is directed to file, along with its Response, written submissions on whether there is any delay, and, if the respondent asserts there was delay, then the respondent should address whether the delay was incurred in good faith and whether substantial prejudice will result to anyone affected by the delay within the meaning of section 34(2); and
The applicant is required to file a Reply after receipt of the respondent’s Response and submissions, and the applicant is directed to address the respondent’s submissions with respect to delay, good faith and prejudice.
12I am not seized of this matter.
Dated at Toronto, this 20th day of October, 2011.
”signed by”________
Ena Chadha
Vice-chair