Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Belcastro Applicant

-and-

Metrolinx Go Transit Respondent

DECISION

Adjudicator: Eric Whist Date: November 8, 2012 Citation: 2012 HRTO 2121 Indexed as: Belcastro v. Metrolinx Go Transit

WRITTEN SUBMISSIONS

David Belcastro, Applicant Self-represented

1This is an Application filed on September 6, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment on the basis of record of offences and reprisal. The Application indicates that the applicant worked for the respondent from May 25, 2006 to March 18, 2009. The Application identifies the last incident of alleged discrimination as having taken place on March 18, 2010. This is almost thirty months prior to the filing of his Application.

BACKGROUND

2The Application initially did not provide a narrative of events to explain why the applicant believed he experienced discrimination contrary to the Code. The Tribunal subsequently sent the applicant a Notice of Incomplete Application. On September 17, 2012 the applicant filed a letter with the Tribunal providing a response to question #8 on the Application which asks “What Happened?”.

3The applicant identifies that he worked for the respondent, building and installing bus tires and carrying out other related maintenance duties. He indicates that he and others had concerns about health and safety standards in the workplace and that there was a determination by a health and safety officer in October 2009 that the equipment the applicant was using was safe. The applicant indicates that on March 17, 2012, he went to the emergency department of a hospital and learned that he had inoperative spinal damage. He states that a Ministry of Labour investigation “failed” the equipment the applicant had been using which resulted in compliance orders being made against the respondent.

ISSUING OF A NOTICE OF INTENT TO DISMISS

4The Tribunal has not yet delivered the Application to the respondent. Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent(s), issue a Notice of Intent to Dismiss the Application (“NOID”).

5The Tribunal sent the applicant a NOID on October 15, 2012. The NOID indicates that it appears that the Application is outside the Tribunal’s jurisdiction because the Tribunal does not have the power to consider claims filed more than one year after the last incident of alleged discrimination, unless the delay is incurred good faith and no prejudice will result to any person affected by the delay. The NOID states that it does not appear that the applicant has cited facts that constitute “good faith” within the meaning of the Tribunal’s case law to explain the delay in the filing of his Application.

6The NOID also states that the Application is outside the Tribunal’s jurisdiction because the events described in the Application fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Application does not provide a narrative or explanation for why the applicant is of the view that he was discriminated against because of his record of offences or any other ground of discrimination or was subject to reprisal by the respondent. The Tribunal directed the applicant to provide submissions within 30 days in response to the issues raised in the NOID.

7On October 16, 2012, the applicant provided brief written submissions. The applicant submits that he did file his Application within the one-year deadline. He submits that he filed his Application online in August 2012 and that there was some difficulties with this electronic filing which resulted in his Application not being considered filed until early September 2012.

8It appears that the applicant is relying on his March 17, 2012 admittance to a hospital as an incident of discrimination to support his contention that he filed his Application within the one-year timeframe required by the Code. The applicant makes no submissions on whether there were good faith reasons for the delay in the filing of his Application other than to note that it was not his fault that there was a slight delay in the filing of his Application in August and September 2012.

9The applicant submits that he was discriminated against “within the Ontario Health and Safety Act under guidelines, codes and standards which is LAW”. The applicant submits that the respondent has responsibilities to provide, maintain and ensure a safe workplace by informing, instructing and supervising workers, appointing competent management and supervisors, acquainting workers with hazards, and taking every precaution reasonable. The applicant’s October 16, 2012 submissions do not refer to any discriminatory treatment on the basis of record of offences or any other ground of the Code or suggest why the applicant is alleging that the respondent’s actions are in reprisal for the applicant pursuing his rights under the Code.

DECISION

10Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Morin c. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

11I am satisfied that it is plain and obvious that the Tribunal does not have jurisdiction in this matter. In my view, the applicant’s clearly expressed concern is with the safety of his work conditions while employed by the respondent. He makes this evident in his September 17, 2012 letter and again in his October 17, 2012 submissions to the Tribunal in which he indicates that the respondent did not meet its obligations under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. In my view, the applicant is alleging that he was injured as a result of his employment with the respondent and that the nature and extent of this injury was more fully determined when he was admitted to hospital in March 2012. However, the applicant has not made a claim that he was differentially treated by the respondent based on a prohibited ground of discrimination under the Code.

12The applicant has not identified in his Application or submissions an act of discrimination related to the ground of “record of offences” which is defined in the Code as a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect to any provincial enactment.

13The applicant has not identified in his Application or submissions an act of reprisal under the Code. Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing

The applicant has made no reference to the respondent subjecting the applicant to threats of, or actual negative consequences as a result of attempting to claim his rights under the Code.

14I have considered whether the applicant has, in effect, claimed discrimination based on disability but has failed to clearly articulate this in his Application and subsequent submissions. However, the applicant’s claim is that he has suffered physical injuries as a result of having to work in unsafe conditions, not that he was treated differently in the workplace for having a physical injury or disability. The applicant has made no identifiable allegations that he was differentially treated by the respondent because of a Code ground including disability.

15My determination that the applicant has not established a connection between the events leading to the Application and grounds under the Code is sufficient to dismiss the Application at this preliminary stage. However, I am of the view that the Application can also be dismissed at this preliminary stage for delay. I find that the application was filed almost 30 months after the last incident of alleged discrimination and the applicant has not explained why this delay was incurred in good faith.

16Section 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.

17The applicant states in his Application that he worked for the respondent from May 25, 2006 to March 18, 2009. The applicant states in his Application that the date of the last event of alleged discrimination was March 18, 2009. The applicant states in his submissions (and his Application) that his Application filed in September 2012 is timely, since it is filed within one year of the last incident of discrimination.

18It would appear that the applicant is relying on his March 17, 2012 visit to a hospital at which time he was told he had permanent spinal damage to constitute an incident of discrimination that would render his Application timely.

19I do not find that the March 17, 2012 visit to a hospital and a diagnosis of a medical condition constitutes an incident of discrimination. It may be such that the applicant believes that this medical condition arises from the respondent’s past actions but his hospital visit and the medical diagnosis made on that occasion are not an act – let alone an act of discrimination – by the respondent.

20I am satisfied that the last incident of discrimination in this case is March 18, 2009, as initially claimed by the applicant in his Application. I find that the Application is untimely notwithstanding the applicant’s claim to the contrary.

21The applicant has provided no submissions to explain why the delay in application was incurred in good faith. I have considered whether the applicant’s visit to the hospital in March 2012 could be considered a reasonable explanation for why the applicant delayed the filing of his Application. I do not find this constitutes a good faith reason. Discovering the extent of a physical injury does not sufficiently explain why the applicant could not have filed his Application previously.

22For all these reasons the Application is dismissed.