Dawit Tuquabo v. University of Ottawa, 2012 HRTO 2338

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dawit Tuquabo

Applicant

-and-

University of Ottawa

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: December 13, 2012

Citation: 2012 HRTO 2338

Indexed as: Tuquabo v. University of Ottawa

1The applicant filed this Application on June 26, 2009, alleging discrimination in the receipt of services on the basis of race, colour and place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Interim Decision dated February 9, 2012 (2012 HRTO 290), the Tribunal dismissed the allegations of discrimination set out in the Application, except for two incidents which occurred on March 18 and 25, 2008 in the BIO3151 (Molecular Biology) class.

3On April 27, 2012, the Tribunal issued a Notice of Confirmation of Hearing setting a hearing date of December 19, 2012 and setting dates for the provision of hearing documents and will-say statements by the parties of November 2, 2012.

4On September 27, 2012, the respondent requested the March 2008 allegations of discrimination in the Application be dismissed for delay.

5The Tribunal issued a Case Assessment Direction on November 28, 2012 (the “CAD”), directing the applicant to file his documentary disclosure and witness statements and provide submissions on the issue of delay. The applicant was advised that the allegations appeared on their face to be out of time because the Application was filed in June 2009, more than one year after the alleged discrimination in March 2008. The applicant was directed to provide an explanation as to why he did not pursue his rights under the Code in a timely way.

6In the CAD, the applicant’s attention was specifically directed to s. 34 which states in part:

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.

7On December 3, 2012, the applicant provided his response to the CAD. The applicant provided the name of a witness that he intends to call at the hearing and confirmed that he does not intend to rely on additional documents other than what was set out in his Application. The applicant did not provide submissions on why he filed his Application outside of the one-year time limit.

8Although the applicant did not explain the reason for his delay in filing the Application, he did refer to an investigation report into his internal complaint by the respondent dated October 16, 2008, and a letter from the Vice-President, Academic and Provost dated December 3, 2008 confirming the respondent’s position that the applicant’s concerns had been addressed in the internal investigation report.

9As 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.

10The Tribunal has held that persons who feel their rights have been violated are expected to file an Application within the one-year time limit specified in the Code, even if it means that they are seeking redress from two different entities, or waiting for the result of an internal investigation. See Agyei-Abankwa v. University of Windsor, 2012 HRTO 92.

11From the information contained in the Application and the Response, it appears the applicant left the university (the respondent) in the spring of 2008. The internal investigation report was provided to the applicant on October 16, 2008. The applicant has provided no explanation as to why he waited an additional eight months to file his Application and no explanation as to why his Application was filed out of time. In the absence of any explanation from the applicant as to why he delayed filing the Application until the end of June 2009, I cannot find the delay was incurred in good faith.

12Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and no jurisdiction to hear the Application. As a result, the Application is dismissed and the hearing date of December 19, 2012 is cancelled.