Cocon v. Ontario Lottery and Gaming Corporation, 2012 HRTO 2403

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Axcel Cocon Applicant

• and-

Ontario Lottery and Gaming Corporation Respondents

DECISION

Adjudicator: Mary Truemner Date: December 27, 2012 Citation: 2012 HRTO 2403 Indexed as: Cocon v. Ontario Lottery and Gaming Corporation

WRITTEN SUBMISSIONS

Axcel Cocon, Applicant ) Self-represented

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging reprisal and discrimination in services on the basis of race, colour, ancestry, place of origin, ethnic origin, and age.

BACKGROUND

2The Application was filed on September 6, 2012, and describes an incident which occurred on August 7, 2010 involving an altercation between the applicant and employees of the respondent. The applicant alleges that the respondent unfairly confiscated his driver’s licence and unfairly banned him from its gaming facilities by accusing him of assaulting a staff member when he had only made a gesture.

3On November 7, 2012, the Tribunal issued to the applicant a Notice of Intent to Dismiss (“NOID”) because it appears the Tribunal has no jurisdiction for the following reasons:

a) the Application was filed more than one year after the incident of discrimination and there were no facts to indicate the delay was in good faith; and

b) the Application fails to identify any specific acts of discrimination within the meaning of the Code.

DISMISSAL

4For the reasons set out here, I have determined that the Application is untimely and should be dismissed for delay. I therefore do not need to consider whether the applicant can demonstrate a link or connection between the allegations raised and discrimination under the Code.

ANALYSIS WITH RESPECT TO DELAY

5Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents.

6The applicant explained in his submissions responding to the NOID that he filed a claim at the Superior Court of Justice which he states issued a decision that included a finding that he did not assault any of the respondent’s employees. The applicant argues that his delay was in good faith because he believed that he could not file an Application until he had cleared the allegation of assault, and the trial in the court matter was not until August 15, 2012.

7I am satisfied that the allegations against the respondents relate to alleged events that happened more than one year before the date of the filing of the Application.

8The Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for his failure to pursue his rights under the Code in a timely manner. The only justification for the delay provided by the applicant was that he was pursuing other legal avenues.

9Waiting for the conclusion of another legal proceeding before pursuing rights under the Code has not been accepted by the Tribunal as a good faith reason for a delay: Mu v. Cargill Foods, 2011 HRTO 846, at para. 42. Similarly, pursuing other legal avenues is not a good faith reason for the delay in this case: Boswell v. NCR Canada, 2012 HRTO 219.

10I do not find that the applicant establishes “good faith” in the applicant’s misguided assumption that, before filing an Application, he needed to dispute the allegation that he had assaulted someone. I find that the applicant has not met the onus on him to demonstrate that the delay in filing his Application was “incurred in good faith” as required under the Code, particularly given that he had retained counsel to assist him in obtaining his driver’s licence which had been confiscated by the respondent on the day of the incident. He provided no explanation for not having obtained legal advice with respect to the limitation period for filing an Application.

11In the absence of a good faith reason for the delay, it is not necessary for me to consider whether substantial prejudice would result from the delay: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

12The Application is dismissed.