Watson v. Transgear Manufacturing, a Division of Linamar Holdings, 2011 HRTO 2162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Watson Applicant

• and-

Transgear Manufacturing, a Division of Linamar Holdings Respondent

INTERIM decision

Adjudicator: Brian Cook Date: December 1, 2011 Citation: 2011 HRTO 2162 Indexed as: Watson v. Transgear Manufacturing, a Division of Linamar Holdings

INTRODUCTION

1The purpose of this Interim Decision is to determine if the Tribunal should dismiss the Application because it was not filed within the time limit established by section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Application was filed on February 28, 2011. The Application alleges that the last discriminatory event occurred on February 26, 2010, when her employment was terminated by the respondent.

34. (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.

3Since the Application was filed more than one year after the last alleged discriminatory event, the Tribunal issued a Notice of Intent to Dismiss, dated October 17, 2011. The Notice indicated that the Tribunal might not have jurisdiction to deal with the Application because it was filed more than one year after the last incident of discrimination described in the Application and because there did not appear to be a “good faith” explanation for the delay. The Application has not yet been served on the Respondent.

4Where the Tribunal has issued a Notice of Intent to Dismiss because the Application was not filed in time, and the Application has not been sent to the respondent, the Application will only be dismissed if it is plain and obvious that the Application was not filed in time.

5The applicant filed a response to the Tribunal’s Notice of Intent to Dismiss on November 10, 2011. She submits that the Application was filed in time and that if it was not, that there is a good faith explanation for the delay.

6In her submissions, the applicant cites the Tribunal’s Rules of Procedure. Subrules 1.8 – 1.10 provide as follows:

Calculation of Time

1.8. Where an order of the Tribunal or a Rule refers to a number of days, the reference is to calendar days.

1.9. Where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.

1.10. When the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday.

7It is not clear that these rules apply to the calculation of the one year time period in section 34 of the Code. However, the Legislation Act, 2006, S.O. 2006, Chapter 21, Schedule F, does apply in respect of interpretation of the language of the Code. Sections 89(1) and (2) of that Act read as follows:

89. (1) Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday.

(2) Time limits for registering or filing documents or for doing anything else that expire on a day when the place for doing so is not open during its regular hours of business are extended to include the next day the place is open during its regular hours of business.

8The Application alleges that the last discriminatory event occurred on February 26, 2010. The Application would have been filed within one year of the last discriminatory event if it had been filed on February 26, 2011.

9In her submissions in response to the Notice of Intent to Dismiss, the applicant points out that February 26, 2011 was a Saturday. The Tribunal is not open for business on Saturdays and Sundays. Pursuant to section 89(2) of the Legislation Act, the time limit would therefore be extended to Monday February 28, 2011, the date that the Application was filed.

10Given this, and based on the materials filed with the Application, it is not plain and obvious that the Application was not filed in time and the Application will not be dismissed on that basis at this time. The Tribunal will continue to process the Application. The Application will be sent to the respondent. The respondent must file a Response within 35 days of its receipt of the Application.

11I am not seized.