Gayathri Seetharam v. Governing Council of the University of Toronto, 2011 HRTO 719

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gayathri Seetharam

Applicant

-and-

Governing Council of the University of Toronto

Respondent

DECISION

Adjudicator: Ena Chadha

Date: April 14, 2011

Citation: 2011 HRTO 719

Indexed as: Seetharam v. University of Toronto

1This Decision deals with an Application filed on July 2, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination with respect to employment on the basis of race and ethnic origin.

2The allegations in the Application concern the applicant’s 2000 to 2002 employment with the respondent and the events surrounding the issuance of a Trespass Notice in 2003 restraining the applicant from direct or indirect contact with any members of the respondent institution. The applicant alleges that in January 2010 she attempted to communicate with officials of the respondent regarding her concerns of mistreatment in 2000-2002 and attempted to provide the respondent with an update of her professional activities; however, the respondent refused to engage in communications with her and sought to enforce the Trespass Notice.

3On November 17, 2010, the respondent filed a Request for Order During Proceedings requesting the Tribunal to dismiss the Application because it was filed more than one year after the last alleged incident of discrimination. The respondent asserts that the relevant dates for the purpose of the Code’s limitation period relate to the events in 2000-2003 and the allegations with respect to the recent communications do not resurrect the limitation period.

4On November 29, 2010, applicant filed a Response to the Request to dismiss. The applicant alleges that the Application was filed within the Code’s one-year limitation because the respondent’s 2010 conduct towards her constitutes new discrimination.

Decision

5Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

6The threshold question in applying section 34 to the circumstances is what constitutes the “incident” to which the Application relates. Although the applicant acknowledges that her employment was terminated in 2002, the applicant noted, in response to Question 7 of the Application, that the date of the last alleged discriminatory incident was March 2010. The 2010 timeframe refers to the applicant’s attempts to communicate with the respondent. Specifically, the 2010 discriminatory behaviour the applicant complains about is the respondent’s request that the applicant abide by the 2003 Trespass Notice and refrain from any direct or indirect contact with members of the respondent institution.

7I do not accept the applicant’s contention that the alleged discrimination she experienced in 2003 reoccurred in 2010 as new discrimination simply because the respondent refused to communicate with her and indicated that she must comply with the Trespass Notice. The applicant’s and respondent’s interactions in 2010 were directly in reference to the 2002 dismissal and the 2003 Trespass Notice. The 2002 dismissal and 2003 Trespass Notice are the acts which the applicant perceives to be discriminatory and are at the heart of her Application. This is acknowledged in her Application, where she states that her concerns arise out of the fact that she was overworked in 2001 and that the discriminatory behaviour exhibited by the respondent in 2003 by issuing the Trespass Notice had a devastating impact on her. As such, I find that the last incident of alleged discrimination cited in the Application is the 2003 Trespass Notice.

8On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith.

9The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

10I reject the applicant’s contention that the alleged discrimination she experienced in 2003 continued until, or reoccurred in, 2010 simply because she attempted to re-communicate her concerns at that time. To allow an applicant to revive an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code. See Seetharam v. Iogen, 2010 HRTO 1811. Moreover, any alleged continuing effect flowing from the 2003 Trespass Notice does not extend the Code’s section 34(1) timeline. See Mafinezam v. University of Toronto, 2010 HRTO 1495. In Mafinezam the respondent issued a Trespass Notice to the applicant informing him that he could not attend the respondent’s premises. The Trespass Notice was issued several years before the Application was filed. The Tribunal rejected the applicant’s argument that he had been the victim of a continuing act of discrimination and found that the Application had not been filed in accordance with section 34(1) of the Code.

11In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of alleged discrimination described in the Application and the delay was not incurred in good faith.

12The Application is dismissed.