HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hamza Allihebi
Applicant
-and-
Presland Residence
Respondent
DECISION
Adjudicator: Alan G. Smith
Indexed as: Allihebi v. Presland Residence
WRITTEN SUBMISSION BY:
Hamza Allihebi, Applicant ) Self-represented
BACKGROUND
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 2, 2012, alleging discrimination in services because of creed. The applicant identifies himself as a Muslim. He resided for some period of time at the residential facility managed by the respondent. The applicant alleges that the respondent failed to provide him with foods prepared in compliance with halal rules, contrary to his religious dietary requirements.
2In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why”), the applicant wrote “June 1, 2009” as the date of the last incident of the alleged discrimination and explained as follows:
I have initially raised the issue with the ODSP program requesting an internal review with regards to my Special Diet Allowance. While at the Presland Residence, I was not provided with the special diet that I was granted through the ODSP program…
I took the issue to the Social Benefit Tribunal many times. I recently applied for Reconsideration of Decision to appeal previous SBT decision. The SBT concluded that the ODSP director was not wrong. I was finally advised to raise the issue with the Human Rights Tribunal.
3The latest incident mentioned in the narrative of the Application is contained in the document entitled “Request for appeal” which was part of an appeal launched by the applicant to the Ontario Social Benefits Tribunal on February 23, 2010. It states in part:
…from March 2006 to May 2009 when I lived at the Presland Residence I was not given a Halal diet such as Halal meats…
4On January 12, 2012, the Tribunal Registrar sent a Notice of Incomplete Application and Notice of Intent to Dismiss (the Notice) to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction (power to decide) because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain the delay in filing. The Notice also contained the following warning: “…if you complete your Application but do not provide written submissions as directed, the HRTO will make its decision based only on the information in your Application…”.
5The Tribunal received submissions from the applicant on February 2, 2012, and again on February 22, 2011, neither correspondence addressed the timeliness issue. The applicant has not filed anything further with the Tribunal and the deadline for further submissions has now passed.
ANALYSIS
6The Tribunal does not have the general power to inquire into claims of unfairness or wrongdoing outside the parameters prescribed in the Code. The Tribunal’s jurisdiction is limited to dealing with disputes that properly fall under the Code. See Fulton-Bell v. Kawartha-Haliburton Children’s Aid Society, 2009 HRTO 1769.
7Section 34 of the Code provides:
(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.
8The Tribunal has set a high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously.
9In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Good faith is more than just the absence of bad faith. To succeed under s. 34(2) the applicant has to show that he acted with all due diligence. See Reid v. Ontario March of Dimes, 2009 HRTO 2207 and McGhie v. Bell Canada, 2011 HRTO 1197.
10The last date the applicant resided in the respondent’s premises was June 1, 2009. Therefore that appears to be the last possible date of the alleged discrimination. Accordingly, I find that the Application is untimely by over 18 months.
11If the applicant’s argument is that he delayed filing an Application because he was awaiting the conclusion of the Social Benefits Tribunal proceeding dealing with the same subject matter as the Application, it cannot succeed. The Tribunal has found in the past that the fact that a person is pursuing other legal avenues of redress is not a valid or good faith reason for an applicant to delay filing an Application with the Tribunal. See Hall v. Royal Victoria Hospital, 2010 HRTO 1165, Jallad v. Ottawa Police Services Board, 2010 HRTO 2408 and Sgro v. Spar Marathon and Roof Supplies, 2011 HRTO 688.
12Given the absence of evidence that the delay was incurred in good faith, I find that the Application does not satisfy the requirements of section 34 of the Code. Therefore the Tribunal is without jurisdiction to proceed with the Application.
13The Tribunal has held that, if it has not been shown that the delay was incurred in good faith, it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579 and McGhie above.
ORDER
14The Application is dismissed.
Dated at Toronto, this 16th day of March, 2012.
“signed by”
Alan G. Smith
Member