Abdeljalil Aboutaeib v. Ministry of Community and Social Services, 2011 HRTO 2092

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdeljalil Aboutaeib

Applicant

-and-

Ministry of Community and Social Services, Nancy Liston, Donna Holmes and Benjamin Parry

Respondents

Decision

Adjudicator: Keith Brennenstuhl

Date: November 18, 2011

Citation: 2011 HRTO 2092

Indexed as: Aboutaeib v. Ontario (Community and Social Services)

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, creed, association with a person identified by a ground as well as reprisal.

2On October 4, 2011, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because it appears that the Application is outside the Tribunal’s jurisdiction due to the delay in filing the Application and because it appears that the relationship of the applicant with the personal respondent, Benjamin Parry, a lawyer for another party in another legal proceeding, is not covered by the Code. The NOID invited the applicant to make submissions responding to these issues.

3The applicant’s submissions have been received and reviewed. The Tribunal finds that it has no jurisdiction to proceed with the Application.

DELAY

4The applicant alleges that on June 24, 2009 his employment with the respondent Ministry was terminated for discriminatory reasons. On September 8, 2011 the applicant filed this Application with the Tribunal, more than two years after the allegedly discriminatory event.

5The Tribunal does not have the power to consider claims filed more than one year after the last incident of discrimination or last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay (subsection 34(1) of the Code).

6In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation why he or she failed to pursue his or her rights under the Code in a timely manner.

7Having considered the matter, I am not satisfied the delay in filing the Application was incurred in good faith.

8The applicant has failed to articulate any reason for the delay in filing his Application other than to assert that it was always his intention to file one. The applicant did file a grievance with respect to the termination of his employment and he appears to be represented by his union. It appears that the grievance process is at the arbitration stage. It may be that the applicant wanted to see if his issues could be resolved through the grievance process before filing his Application with the Tribunal. However, this is not a reasonable explanation for the delay. Nothing prevented the applicant from filing a timely application under the Code while he pursued his grievance.

9This Tribunal has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one’s rights under the Code constitutes a good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, Mu v. Cargill Foods, 2011 HRTO 846, at paragraph 42 and others.

10The applicant has not provided a reasonable explanation for the failure to file a timely Application under the Code. I am not satisfied therefore that the delay in filing the Application was incurred in good faith within the meaning of the Code. In light of this determination it is not necessary to make the further determination as to whether anyone has been substantially prejudiced by the delay.

APPLICANT’S RELATIONSHIP WITH BENJAMIN PARRY

11The Application raises vague allegations of discrimination that allegedly occurred in June 2011. Apparently at his arbitration hearing, the applicant was cross examined by Mr. Parry, a lawyer acting for the respondent Ministry, and during the course of the examination discriminatory questions with respect to the applicant’s race and creed were posed.

12I make no findings on whether any discriminatory questions were posed, but even if accepted as true, the Tribunal does not have the jurisdiction to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall within the five social areas of the Code. It has been found by this Tribunal that the relationship between a lawyer and an opposing party does not fall within a social area of the Code and is therefore not within the Tribunal’s jurisdiction. See Cooper v. Pinkofskys, 2008 HRTO 390 and Belso v. York Region Police, 2009 HRTO 757.

13The Application is therefore dismissed as being outside the Tribunal’s jurisdiction.