Akande v. Ontario Long Term Care Home for the Deaf Inc., 2011 HRTO 2138

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Iyabo Akande Applicant

-and-

Ontario Long Term Care Home for the Deaf Inc. Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: November 28, 2011 Citation: 2011 HRTO 2138 Indexed as: Akande v. Ontario Long Term Care Home for the Deaf Inc.

WRITTEN SUBMISSIONS

Iyabo Akande, applicant ) Brenda Cuthbert, Counsel

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 September 15, 2011, alleging discrimination in employment on the basis of race and colour. The applicant indicated in her Application that the last incident of alleged discrimination took place on June 18, 2010.

2A Notice of Intent to Dismiss (“NOID”) was issued on September 26, 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.

DELAY

3Section 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.

4As 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 she did not pursue her rights under the Code in a timely manner.

5The Human Rights Legal Support Centre (the “Centre”) filed lengthy submissions on the applicant’s behalf, in which it states that the applicant contacted the Centre on July 30, 2010. These submissions further state that the applicant cooperated with the Centre in the provision of all supporting documentation as per its requests thereafter. The Centre states that the delay in filing was the result of “inadvertence” of assigned counsel, and was not attributable in any way to the applicant’s conduct.

6In the circumstances, I am not satisfied it is plain and obvious that the delay in filing the Application outside the one year limitation period was not incurred in good faith. Accordingly, the Tribunal will continue to deal with the Application.

7This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application.

8I am not seized of this matter.