Michael de Costa v. Toronto Transit Commission, 2012 HRTO 909

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vinod Michael de Costa Applicant

• and -

Toronto Transit Commission and David Dixon Respondents

DECISION

Adjudicator: David Muir Date: May 4, 2012 Citation: 2012 HRTO 909 Indexed as: Michael de Costa v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Vinod Michael de Costa, Applicant, Self-represented

1This is an Application filed on November 19, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of colour, ethnic origin, place of origin, race and reprisal. The Application has not yet been delivered to the respondents and therefore no Response to it has been filed.

DECISION

2As indicated above this Application was filed on November 21, 2011 the last incident of discrimination is said to have occurred on November 19, 2010 when the applicant alleges that his employment was terminated for discriminatory reasons.

3On March 26, 2012 the Tribunal issue a Notice of Intent to Dismiss (NOID) because it appeared that the Application may be outside of the Tribunal’s jurisdiction it being filed more than one year after the last alleged incident of discrimination.

4Sections 34(1) and (2) of the Code provide:

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.

5An application will only be dismissed at a preliminary stage, prior to service on the responding party, 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.

6This Application is out of time. It was filed on November 21, 2011 and as indicated previously assuming that the last alleged incident could be considered an incident of discrimination, it is said to have occurred on November 19, 2010. Although the Application is only a few days out of time it remains that the applicant must meet the requirements of section 34(2) - provide a good faith explanation for the delay and establish that there will be no substantial prejudice to any party. (See Farwell v. Northumberland Services for Women, 2010 HRTO 1126).

7The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241)

8In his submissions the applicant explains that he met with an employee of the Human Rights Legal Support Centre on November 29, 2010 who advised him that he had one year from November 19. 2010 to file this Application. The applicant also explains that he moved to Sri Lanka in early 2011 to obtain employment. He also explains that he suffered emotionally as a result of various issues in his life and began seeing a psychiatrist. The applicant provided a report from the Psychiatrist which indicates that the applicant may have been suffering from depression for periods of time in the first half of 2011. The Psychiatrist further reports that the applicant functioned well with treatment and by August 2011 there were no signs of depression and he was functioning well in all aspects of his daily life.

9I am not satisfied that the applicant has established a good faith explanation for the delay in filing this Application. The applicant states that his medical condition as supported by the medical report cited above establishes that he was not acting in bad faith. As indicated previously the requirement of good faith is more than the absence of bad faith. The medical evidence provided by the applicant does not establish that he was incapacitated at any time and such that he was incapable of filing this Application. Moreover the applicant’s medical evidence is that he was completely well by August 2011. There appears to be no explanation at all for the delay beyond August 2011.

10The Application is dismissed, it being plain and obvious on the face of it that the Application is outside the jurisdiction of the Tribunal for all of the reasons set out above. Having found that there is no good faith explanation for the delay in filing the Application I need not consider whether any party might have been prejudiced by such delay.