Tavares v. Evandrew Foods Inc., 2012 HRTO 1117

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas Tavares

Applicant

-and-

Evandrew Foods Inc. and Crystal Amsden

Respondents

DECISION

Adjudicator: Naomi Overend

Date: June 6, 2012

Citation: 2012 HRTO 1117

Indexed as: Tavares v. Evandrew Foods Inc.

APPEARANCES

Nicholas Tavares, Applicant

Self-represented

Evandrew Foods Inc. and Crystal Amsden, Respondents

Mark Mendl, Counsel

Introduction

1This Application, alleging discrimination in employment on the basis of perceived sexual orientation, was filed on May 16, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent filed a Request for an Order During Proceedings (the “Request”) asking that the Application be dismissed as disclosing no link with the Code and for being out-of-time.

2Having reviewed the Request to dismiss, the applicant’s Response to the Request and the pleadings, the Tribunal directed that a summary hearing be held to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3This summary hearing was held on May 29, 2012, at which time, the applicant was asked for submissions on whether there was a link between what he described as the ongoing harassment at his workplace and a ground under the Code. He indicated that he was unable to do so with respect to all but the comment he alleges was made in or about November 2007.

4Given his inability to make this link, I dismissed the Application orally without requiring the respondents’ counsel to make submissions. I advised the parties that I would prepare written reasons, which are as follows.

decision

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at para. 8:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

7The applicant has been an employee with the corporate respondent (which runs a McDonald’s restaurant) since 2007. Shortly after he started working there, the individual respondent became his supervisor. The applicant alleges that she immediately commenced a campaign of harassment. He states that in or around the end of November 2007, she commented to other employees that the applicant was “gay because of the way he walked and talked and used his hands.”

8The Application makes no further reference to comments based on the applicant’s perceived sexual orientation, but alleges an ongoing pattern of what the applicant describes as harassment and bullying. It would appear from the pleadings that the relationship between the applicant and the personal respondent improved and that more recently the applicant was being trained for management within the restaurant. However, he alleges that when he advised the individual respondent he was returning to school, his scheduled hours were reduced.

9As noted in numerous Tribunal decisions, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between the respondents’ alleged actions and a Code ground. With the exception of the alleged comment about the applicant’s perceived sexual orientation, the applicant is unable to point to such a link.

10The applicant believes the alleged comment about him being gay occurred in late November 2007, almost three and a half years before he filed his Application with this Tribunal. Section 34 (1) and (2) of the Code read as follows:

(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.

11In his Response to the Request to dismiss, the applicant states that he believes his Application is timely because the comment was one of a series of incidents that continued in the intervening years. However, in order to be an “incident” within the meaning of s. 34(1), the conduct or comments must be alleged infringements of the rights under Part I of the Code. As discussed above, the conduct and comments complained of after November 2007 were unrelated to the Code.

12As 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 he did not pursue his rights under the Code in a timely manner.

13The applicant has failed to provide the Tribunal with an explanation for why he did not pursue his rights earlier other than his mistaken belief that the conduct occurring since was also harassment. There is, accordingly, no basis for finding that the delay was incurred in good faith.

14In summary, the allegations in the Application are outside the jurisdiction of this Tribunal either because there is no link with a ground under the Code or, with respect to the one allegation where a link is alleged, because it is untimely. This Application is dismissed as having no reasonable prospect of success.