Ocran-Caesar v. Toronto Police Services Board, 2011 HRTO 2268

Human Rights Tribunal of Ontario

B E T W E E N:

Noah Assaidu Ocran-Caesar Applicant

-and-

Toronto Police Services Board, William Blair, Lisa Hayford and Sanjay Sondhi Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta Date: December 19, 2011 Citation: 2011 HRTO 2268 Indexed as: Ocran-Caesar v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Noah Assaidu Ocran-Caesar, Applicant ) No Written Submission Toronto Police Services Board, Respondent ) David A. Gourlay, Counsel William Blair, Lisa Hayford and Sanjay Sondhi, ) Naomi E. Calla, Counsel Respondents )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges discrimination and harassment in on the basis of race, colour, ethnic origin, sex and age in relation to three incidents

2The respondents Blair, Hayford and Sondhi filed a Request for Order during Proceedings (Form 10) seeking dismissal of all allegations that fall outside the one year limitation period and seeking dismissal of all allegations that fail to disclose a prima facie case of discrimination.

3The respondent Board has filed an email adopting its co-respondents' submissions and consenting to the Order sought by them.

4The applicant has not filed a Response to the Request and his timeline for doing so has now passed.

5The Tribunal will address the portion of the Request that deals with the timeliness issue. The balance of the Request will be addressed at the hearing into this matter, scheduled for January 26, 27 and 28, 2012.

TIMELINESS

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.

7Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay

8There are three incidents referred to in the Application filed on August 11, 2010; one that took place on May 6, 2009, another on February 9, 2010 and a third on September 29, 2010.

9The respondents argue that the May 6, 2009 incident is not part of a series of incidents but a discrete event unrelated to the other two events described in the Application. As such, they argue, the May 6, 2009 incident has not been brought before the Tribunal in a timely way.

10The initial onus is on the applicant to show that the delay in filing the Application was incurred in good faith. If he is able to establish good faith, the onus shifts to the respondent to show that it will suffer substantial prejudice as a result of the delay in filing the Application.

11Although provided with an opportunity to do so, the applicant has not made any submissions regarding the reasons for the delay in respect of the May 6, 2009 incident, which involved him being stopped on his bicycle and being given a ticket for having no horn, or whether the delay was incurred in good faith.

12Accordingly, based on the materials filed with the Tribunal, there is no basis upon which I could conclude that the delay in raising the May 6, 2009 incident was incurred in good faith within the meaning of the Code.

13Accordingly, the allegations concerning the May 6, 2009 incident are dismissed on the basis of delay. The balance of the Application will proceed as scheduled.