Mohammad Sheikh v. Mike Gager, 2011 HRTO 731

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Sheikh

Applicant

-and-

Mike Gager

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: April 15, 2011

Citation: 2011 HRTO 731

Indexed as: Sheikh v. Gager ______________________________________________________________________

WRITTEN SUBMISSIONS

Mohammad Sheik, Applicant ) Anita Balakrishna, Counsel

1This Application was filed on August 20, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) and alleges discrimination in housing based on colour.

2Specifically the applicant alleges that the personal respondent, an inspector from the Office of the Fire Marshall, provided false information when testifying as a witness in an Ontario Court of Justice proceeding on February 10, 2010 and this led to the applicant being convicted and fined under the Fire Protection and Prevention Act 1997, S.O. 1997, c. 4 (“FPPA”). The applicant alleges that the personal respondent did this because of the applicant’s colour; that the personal respondent chose to side with two of the applicant’s tenants who are, like the personal respondent, white.

BACKGROUND

3On October 22, 2010, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant stating that the Application appeared to be outside of the Tribunal’s jurisdiction because the Application appeared to be challenging the decision or outcome of an adjudicative process. The NOID invited the applicant to file written submissions within thirty days of the date of the letter. On October 25, 2010 the applicant provided submissions but failed to address whether the conduct of the personal respondent in court constitutes a service under the Code.

4In an Interim Decision dated February 16, 2011, 2011 HRTO 345, the Tribunal asked for further submissions from the applicant on the specific issue of whether the personal respondent’s role as a witness at a hearing can be considered a service within the meaning of the Code given the Tribunal’s decisions particularly Surh v. Toronto (City), 2009 HRTO 1700.

5On March 24, 2011 the applicant’s counsel filed submissions with the Tribunal. The applicant submits he is not alleging that the personal respondent’s role as a witness in Court should be considered a service but rather that the personal respondent’s conduct and actions towards him during the investigation of an alleged violation of the FPPA was a service within the meaning of the Code. The applicant submits the personal respondent had a duty to act in a non-discriminatory manner at all stages of his investigation process of a potential violation and that he did not do this. The applicant therefore submits that the Tribunal has the jurisdiction over the issues in dispute in his Application. The applicant also requested as part of his submissions that the Office of the Fire Marshall be added as a respondent to the Application.

DECISION

6The applicant has clarified that he is not alleging the personal respondent’s conduct and testimony as a witness in a court proceeding violated the Code. Rather he alleges the personal respondent’s conduct and actions during his September 11, 2008 Fire Protection and Prevention Act investigation discriminated against the applicant on the basis of his colour.

7The applicant’s clarification presents another jurisdictional issue. If the incident of alleged discrimination occurred in September 2008 the Application was filed outside the time required by section 34 of the Code. Section 34 of the Code 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.

8The Tribunal has the discretion to accept an application filed outside the one year limitation period where it is satisfied the delay in filing the application was incurred in good faith and the delay would not cause substantial prejudice to any person affected by the delay. The Tribunal has considered when to exercise its s.34(2) discretion in a number of decisions. See, for example, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Klein v. Toronto Zionist Council, 2009 HRTO 241; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The applicant is directed to provide written submissions within thirty (30) days from the date of this Interim Decision as to why the delay in the filing of his Application was incurred in good faith. If the applicant does not file written submissions the Tribunal will make its decision based only on the information in the Application.

9The applicant’s Request to add a respondent to the Application will be addressed if necessary after the Tribunal has determined the delay issue.

10The respondent is not required to respond to the Application until directed to do so by the Tribunal.

11I am not seized of this matter.