Unyi v. Durham Race Operations, 2012 HRTO 9

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Penny Unyi

Applicant

• and-

Durham Race Operations, Picov Downs Inc o/a Ajax Downs and Lucy Richards

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: January 4, 2012

Citation: 2012 HRTO 9

Indexed as: Unyi v. Durham Race Operations

1The applicant filed an Application on July 25, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging discrimination with respect to employment on the basis of family status. The applicant appears to allege that she was denied work shifts because she, her husband and her mother were employed at the same place.

2The Tribunal has not yet delivered the Application to the respondents.

3On September 7, 2011, the Application was returned to the applicant as incomplete and the Tribunal issued a Notice of Intent to Dismiss (“Notice”) to the applicant which indicated that, pursuant to section 34 of the Code, the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination.

4On September 26, 2011, the applicant filed written submissions indicating that the respondents stopped scheduling her for shifts with no explanation in 2010. The applicant alleges that in May 2011 her mother attempted to secure the applicant and the applicant’s husband more work shifts but was denied because of missing shifts and/or the “family rule”. The applicant further alleges that a discriminatory exchange took place between the applicant and a personal respondent on June 10, 2011, following which a workplace meeting occurred wherein the applicant’s circumstances were discussed and noted that the applicant was not permitted to work because of the “family rule”.

DECISION

5An application will only be dismissed at a preliminary stage, prior to service on the respondents, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

6I am satisfied that the Application should be served on the respondents and that the respondents should be given an opportunity, if they wish, to raise and address the issue of delay. The applicant submits there is no delay because the alleged discrimination was on-going from 2010 into 2011. Based on the information provided by the applicant, it is not plain and obvious that there is any delay or whether or not the delay in filing the Application was incurred in good faith and/or whether there is any prejudice.

7Accordingly, the Tribunal will continue to deal with the Application. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code. If the respondents take the position that the Tribunal should not proceed with the Application because of delay or any other jurisdictional ground, the parties may be required to make further submissions and, in particular with respect to the issue of delay, provide evidence on the issues of whether the delay was incurred in good faith and whether substantial prejudice will result to any person affected by the delay.

STYLE OF CAUSE

8On November 22, 2011, the applicant wrote to the Tribunal indicating that she wished to remove one individual that she had previously identified as a personal respondent. In light of the applicant’s correspondence, the Application will proceed only against the respondents as identified in the style of cause of this Interim Decision.

DIRECTIONS

9The Tribunal orders as follows:

1. The Tribunal shall serve the Application, the Notice of Incomplete Application and Notice of Intent to Dismiss, the applicant’s September 7, 2011 submissions and November 22, 2011 correspondence, as well as a copy of this Interim Decision on the respondents; and

2. The respondents are directed to file Responses (Form 2) within 35 days of the date of this Interim Decision.

3. The applicant is required to file with the Tribunal and deliver to the respondents a Reply (Form 3) within 14 days of the date of the Response.

4. The Tribunal will deliver copies of the Application, the November 22, 2011 correspondence and this Interim Decision to the individual discussed in paragraph 8 against which the Application is not proceeding. That individual need not take any steps as he is not a respondent to this Application.

10The Tribunal will consider the parties’ materials and may determine any preliminary issues based on the written submissions, and/or may schedule future steps.

11I am not seized of this matter.