HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tatiana Ovtchinnikova
Applicant
-and-
Para Med Home Health Care
Respondent
decision
Adjudicator: Naomi Overend
Indexed as: Ovtchinnikova v. Para Med Home Health Care
1The applicant filed this Application on September 3, 2010 alleging discrimination in employment on the basis of place of origin, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent asked to have this matter dismissed for delay in its Response, but this request was dismissed in an Interim Decision, 2011 HRTO 587, on the basis that the applicant indicated that the last incident occurred in July 2010, only two months prior to the filing of the Application. Specifically, the Tribunal noted that the applicant alleged that she received fewer hours than others who were not Russian, and the respondent’s Response acknowledged that she had met with the respondent in July 2010 over a concern about her hours.
3Subsequent to filing its Response, the respondent filed a Request for Order During Proceedings (“Request”) asking the Tribunal to order the applicant to provide particulars. It noted that the Application had very few details and almost no dates. In a second Interim Decision, 2012 HRTO 277, I ordered the applicant provide particulars with respect to names and dates.
4The applicant complied with this order in a handwritten document submitted on February 21, 2012. The material she provided indicated that the allegations of discrimination set out in her original Application occurred generally during the 2005-2008 time period. There is one event she describes as possibly occurring “3-4 years ago, but this would still be early 2009 (at the latest), which is more than 18 months before she filed her Application.
5In light of this new information, the respondent renewed its request to have the matter dismissed for delay in a Request for an Order During Proceedings, dated March 28, 2012. It sent the original request to the applicant via courier, which was returned to it as undeliverable. On April 9, 2012, counsel for the respondent advised the Tribunal of this, and also that it had delivered the Request to the applicant that day via email.
6In the meantime, before I became aware of the difficulty with delivery, I ordered the applicant in a Case Assessment Direction (“CAD”) dated April 5, 2012, to file her submissions on the respondents Request to dismiss for delay by April 12, 2012. Although the applicant attempted to file material in response to that CAD on April 19, 2012, these materials do not address the issue of delay.
7The applicant has filed no material since that day, either in response to the CAD or the Request for Order, and the time for doing so has passed. This matter was scheduled to proceed to a hearing on May 3 and 4, 2012.
DECISION
8An application that is filed more than one year past the last incident of alleged discriminatory conduct may be barred by virtue of s. 34, which 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.
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 she did not pursue her rights under the Code in a timely manner.
10In light of the applicant’s February 23, 2012 written submissions in which she clarifies (among other things) the timing of her allegations, it is clear that the incidents to which the applicant’s Application relate occurred outside the one year time limit set out in s. 34 (1)(a). She continued to work for the respondent after 2008, and so would obviously have continued to interact with the respondent’s staff after that time. However, when determining whether an application is timely, it is only interactions or incidents in which the applicant alleges her rights under the Code were infringed that are relevant.
11As 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 she did not pursue her Code rights in a timely manner.
12The applicant has failed to provide any explanation for why she did not file her Application sooner. The respondent notes in its Response that the applicant complained to it in 2008 about what she perceived as discrimination on the basis of her nationality, which it says it investigated and found no evidence in support of the claim. The applicant did not file a Reply denying that this had taken place. There is simply no explanation why she then waited an additional two years before filing her Application to this Tribunal about what appears to be the same allegations.
13The Tribunal does not have the jurisdiction to deal with this Application given that it is filed outside the one-year time limit and there is no evidence that the delay was incurred in good faith. Accordingly, her Application is dismissed and the May 3 and 4, 2012 hearing dates cancelled.
Dated at Toronto, this 25th day of April, 2012.
“signed by”
Naomi Overend
Vice-chair