HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
George Abdallah
Applicant
- and-
Conseil Scolaire de District des Ecoles Catholiques due Sud-Ouest and
Lynn Zarek
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Abdallah v. Conseil Scolaire de District des Ecoles Catholiques due Sud-Ouest
1The applicant filed an Application on March 21, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging discrimination with respect to employment on the basis of record of offences.
2The Application originally named the institutional respondent Conseil Scolaire de District des Ecoles Catholiques due Sud-Ouest and Marianne Gagne as a personal respondent. The Application indicated that the last event occurred in March 2010. The applicant alleges that he has repeatedly applied to no avail for a teaching position with the institutional respondent and that he believes he is being denied a job because of discriminatory views about his criminal record for which he has received a pardon.
3The Application was returned to the applicant on a number of occasions as incomplete and the applicant subsequently provided the missing information. During this process, the applicant indicated that he was filing the Application as against Joseph Piccard and Lynn Zarek.
4The Tribunal has not yet delivered the Application to the respondents.
5On July 19, 2011, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) to the applicant which indicated 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 also indicated that, while it appeared that the Application named Marianne Gagne, the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by this individual.
6On August 11, 2011, the applicant wrote to the Tribunal and indicated that he sought to pursue the Application against Ms. Zarek because she was the one who interviewed him for the supply teaching position. With respect to an explanation for the delay, the applicant stated that his daughter was hospitalized in another city for 3 months due to relapsed Leukemia.
7On September 9, 2011, the Tribunal issued a Case Assessment Direction directing the applicant to file submissions with respect to the issue of delay and to advise as to whether he wishes to proceed as against Marianne Gagne and/or Joseph Piccard and, if so, the basis for his allegations as against these individuals. The applicant wrote to the Tribunal on September 25, 2011, following which the Tribunal issued a second Case Assessment Direction on October 14, 2011.
8On October 26, 2011, the applicant filed written submissions with respect to the issue of delay and the named respondents. The applicant states that he has no objection to the Tribunal dismissing the Application as against Marianne Gagne and Joseph Piccard; however, wishes to proceed against Lynn Zarek as a personal respondent. The applicant clarified the timeline with respect to his allegations and claims that the discrimination has continued until the fall of 2011. The applicant alleges that every fall since September 2007 he has applied for a position with the respondents and that the respondents refuse to hire him because of his past conviction for which he has been pardoned. The applicant alleges that the respondents continue to give him assurances that his application for employment would be supported but ultimately he is never hired.
9An application will only be dismissed at a preliminary stage, prior to service on the respondents, 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.
10I am satisfied that the Application should be served on the respondents and that the respondents should be given an opportunity to address the issue of delay. The applicant submits there is no delay because the alleged discrimination is on-going. The applicant has also stated that if there was delay the delay was due to his daughter being hospitalized in another city for 3 months due to relapsed Leukemia. Based on the information provided by the applicant, it is not plain and obvious that there is any delay or whether or not the delay in filing the Application was incurred in good faith and/or whether there is any prejudice.
11Accordingly, the Tribunal will continue to deal with the Application. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code. If the respondents take the position that the Tribunal should not accept the Application because of delay, the respondents may file a Request for an Order During Proceedings (Rule 19 of the Tribunal’s Rules of Procedure) and the parties may be required to provide submissions and evidence on the issues of whether the delay was incurred in good faith and whether substantial prejudice will result to any person affected by the delay.
12In light of the applicant’s agreement, Marianne Gagne and Joseph Piccard are to be removed as personal respondents from this Application.
DIRECTIONS
13The Tribunal orders as follows:
Marianne Gagne and Joseph Piccard are removed as personal respondents from this Application and the style of cause is amended accordingly; and
The Tribunal shall serve the Application, the Notice, the two Case Assessment Directions, the applicant’s correspondence and submissions and a copy of this Interim Decision on the respondents;
The respondents are directed to file a full Response and the applicant a Reply.
14I am not seized of this matter.
Dated at Toronto, this 3rd day of November, 2011.
“Signed by”
Ena Chadha
Vice-chair