Glazier v. Ryerson University, 2012 HRTO 1456

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lindsey Glazier

Applicant

-and-

Ryerson University and Anthony Bonato

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: July 25, 2012

Citation: 2012 HRTO 1456

Indexed as: Glazier v. Ryerson University

WRITTEN SUBMISSIONS

Lindsey Glazier, Applicant ) Self-represented )

1The applicant filed this Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 22, 2012, alleging discrimination with respect to employment because of disability. The applicant alleges that she was discriminatorily dismissed on May 19, 2011.

2The Application has not yet been served on the respondents. On June 15, 2012, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) indicating that the Tribunal may 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.

3The applicant filed submissions in response to the Notice. The applicant indicates that she believed the Application was filed in time. The applicant explains that she submitted the Application “on-line” on May 19, 2011, which was a Saturday, and that the Tribunal only received the Application on the next business day, that being May 22, 2012. The applicant submits that filing the Application on the next business day is a good faith explanation for the delay.

4The purpose of this Interim Decision is to determine if the Tribunal should dismiss the Application because of delay.

DECISION

5An application will only be dismissed at a preliminary stage, prior to delivering it to the responding party, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay. See Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

6Section 34(1) of the Code reads as follows:

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.

7The Tribunal’s Rules of Procedure (“Rules”) assist in the interpretation of the Code and guide the Tribunal with respect to its exercise of powers and its practises. With respect to the calculation of time, the Tribunal’s Rules provide as follows:

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.

8As noted in Watson v. Transgear Manufacturing, a Division of Linamar Holdings, 2011 HRTO 2162, the Legislation Act, 2006, S.O. 2006, Chapter 21, Schedule F, (“Legislation Act”), also applies to the interpretation of provisions of the Code. With respect to interpreting time limitations, the Legislation Act states that:

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.

9The applicant alleges that the last discriminatory event was the termination of her employment which occurred on May 19, 2011. As such, the applicant was required to file her Application by May 19, 2012 to come within the one year deadline of section 34(1) of the Code. In her submissions in response to the Notice, the applicant points out that May 19, 2012 was a Saturday and, therefore, the Application was only received by the Tribunal on the next business day, that being May 22, 2012.

10The applicant is correct in her submission that May 19, 2012 was a Saturday. The Tribunal in Watson, supra, recognized the Tribunal is not open for business on the weekends.

11Rule 1.4 of the Tribunal’s Rules defines “holiday” to mean any Saturday, Sunday, or other day on which the Tribunal’s offices are closed. The Tribunal’s offices are closed on the nine Ontario public holidays established under the Employment Standards Act, 2000, S.O. 2000, c. 41:

New Year’s Day

Family Day

Good Friday

Victoria Day

Canada Day

Labour Day

Thanksgiving Day

Christmas Day

Boxing Day (December 26)

12I note that Monday May 21, 2012, was a public holiday in Ontario, specifically Victoria Day, and, therefore, the Tribunal was closed for that holiday.

13As such, in accordance with the Tribunal’s Rules and pursuant to section 89(2) of the Legislation Act, the section 34(1) time limit would extend to the next business day following a holiday. In the instant case, the next business day following the May 19-20, 2012 weekend and the May 21, 2012 Victoria Day public holiday was Tuesday May 22, 2012, the date that the Application was received by the Tribunal.

14I find that in accordance with the Tribunal’s Rules and the Legislation Act with respect to the calculation of time and recognizing the public holidays set out in the Employment Standards Act, it is not plain and obvious that the Application was not filed in time. As such, at this stage of the proceedings, the Application will not be dismissed for delay and the Tribunal will continue to process the Application.

ORDER

15The Tribunal will forward the Application, the Notice, the applicant’s submissions and this Interim Decision to the respondents. The respondents must file a Response within 35 days of receipt of the materials.

16I am not seized.