Avery v. A.M., 2012 HRTO 19

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Avery

Applicant

-and-

A.M.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: January 5, 2012

Citation: 2012 HRTO 19

Indexed as: Avery v. A.M.

WRITTEN SUBMISSIONS

Alan Avery, Applicant ) Self-represented

1The applicant filed this Application on October 4, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment in employment on the basis of race, colour, ethnic origin and reprisal. The Application is based on the fact that the respondent had previously filed an application (the “previous Application”) in which she made allegations against the applicant (in this proceeding) and named him as a respondent. In other words, the filing of the previous Application was the incident of discrimination which forms the basis for this Application.

2On November 10, 2011, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) on the basis that some of the allegations in the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) and on the basis of delay. The applicant filed written submissions on jurisdiction and delay on December 14, 2011.

3The Application has not been sent to the Respondent. Pursuant to Rule 3.11.1 of the Tribunal’s Rules, the respondent’s name has been anonymized in the title of proceedings.

DELAY

4Section 34 states, in part:

(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.

5As 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.”

6The previous Application on which the applicant bases his Application was filed on September 3, 2009, more than two years prior to the filing of the instant Application. This Application is, therefore, out of time.

7The Tribunal can accept an application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

8The applicant’s explanation for the delay, both in his Application and in his submissions on the NOID, is that he was not allowed to file a complaint until the previous Application had been dealt with. In support of this position, he submits an “email that suggests that a complaint at that time would only be viewed as reprisal.” Assuming, without deciding, that this could amount to a good faith explanation, it fails to address why the applicant waited an additional 10 months before filing the instant Application. That is, he encloses a letter addressed to him, dated November 23, 2010, in which he is advised that the previous Application had been resolved, but the applicant did not file this Application until October 4, 2011.

9Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this untimely Application. It is not necessary therefore to address the issue of prejudice.

JURISDICTION

10Prior to serving an application on the named respondent(s), the Tribunal will only dismiss an application where it is plain and obvious that the matters do not fall within its jurisdiction.

11As indicated at the outset of this Decision, this Application is based entirely on the fact that the respondent brought a previous Application against the applicant. He alleges that the previous Application states that, in his role as a teacher, he (1) acted in a discriminatory manner towards the applicant’s son; (2) conducted himself in an unprofessional and incompetent manner; (3) engaged in behaviour to draw in others into his campaign of harassment; and (4) falsified the school timetable.

12It is the applicant’s position that these allegations are both false and harassing. Other than making the bald assertion in his Application and in his submissions in response to the NOID that these allegations are based on the applicant’s race, colour and ethnic origin, the applicant points to no further allegations or evidence in support of this link. Allegations of racial discrimination do not themselves constitute race discrimination. This is not to say that such allegations could never be discriminatory, but that there would need to be more than simply the fact of the allegation.

13Likewise, the applicant makes an argument in his Application that he was subject to “reprisal” simply because he was named as a respondent in the previous Application. The concept of reprisal within the Code requires an applicant to have been reprised against for claiming or enforcing his rights, filing or participating in a proceeding under the Code, or refusing to violate the rights of someone else. The applicant has pointed to no such action on his part.

14For the above reasons, it is plain and obvious that this Application is outside the jurisdiction of the Tribunal. Given that and the delay in instituting this proceeding, this Application is dismissed.