HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.M. by his next friend D.O.
Applicant
-and-
Dufferin-Peel Catholic District School Board
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: J.M. v. Dufferin-Peel Catholic District School Board
1This is an Application filed on January 12, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2As the Application is made by the applicant’s father as the next friend of a minor, initials will be used in place of the names of the applicant and his next friend in the Tribunal’s decisions.
3Mediation did not result in a settlement of the Application, and this matter will accordingly be scheduled for a hearing. The respondent the Dufferin-Peel Catholic District School Board (the “Board”) has filed a Request for an Order During Proceedings seeking early dismissal of the Application on the basis that certain of the allegations are untimely and that as a whole the allegations do not disclose a prima facie case of discrimination under the Code.
4For the reasons that follow, the Tribunal dismisses part of the Application. The Board’s request to dismiss for no prima facie case will not be dealt with at this stage, and it will be left to the Vice-chair assigned to the hearing of this matter to determine how and when to deal with the request.
DELAY
5The applicant was a secondary school student at one of the Board’s schools. It appears that he is no longer a student, having graduated. In the Application, the applicant states that he has been subjected to unfair and racially-biased treatment since about 2004. He refers to one incident in January 2004, an incident in September 2007, and several incidents in 2009. He also refers to incidents in March, May and December 2010, and January 2011.
6Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
- (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.
7Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist. The applicant must provide the Tribunal with 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; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
8The respondent asks that the allegations about events in 2004, 2007 and 2009 be struck from the Application because they are untimely. The Board raised this issue in its Response and, as indicated above, has also filed a Request. In the applicant’s Reply he acknowledges that these allegations have been brought outside the one-year limitation period in the Code. He does not assert that the Tribunal should hear these allegations on the basis that they are part of a “series of incidents”, nor provide an explanation for why these allegations were not made earlier. The applicant also filed a response to the Request, but does not address the delay in bringing these allegations.
9On my review of the allegations covered by the Application it appears that they involve different individuals over an extended period of time with lengthy gaps between some of the events. In similar circumstances the Tribunal has found such allegations not to be part of a “series of incidents” for the purposes of section 34(1): see, for instance, Thambipillai v. Toronto District School Board, 2011 HRTO 487. Having regard to the material before me, including the submissions of the parties, I find that the incidents before March 2010 are not part of a series of incidents with the later incidents.
10There is no explanation for why the applicant did not bring an Application in a timely fashion about the events before March 2010 and there is therefore no basis for a finding under section 34(2) that the delay was incurred in good faith.
11I therefore dismiss the allegations about events in 2004, 2007 and 2009 as untimely.
PRIMA FACIE CASE
12The Tribunal may dismiss an Application at an early stage where it does not disclose a prima facie case of discrimination. The Tribunal may also direct a summary hearing on the question of whether an Application should be dismissed because there is no reasonable prospect that it will succeed and need not give reasons for refusing a respondent’s request for a summary hearing.
13Under the Tribunal’s Rules the Tribunal has the authority, in providing for the fair, just and expeditious resolution of any matter before it, to determine the order in which issues will be considered and determined, including issues considered by a party to be preliminary (Rule 1.7(g)).
14In the circumstances before me, I do not find it appropriate to direct a summary hearing. I also decline to determine the request to dismiss the Application at this early stage. Rather, I remit the respondent’s request to the Vice-chair assigned to hear the Application, who may make case management directions on how the Application will be heard, including whether it is appropriate to determine the respondent’s request before any evidence is heard.
15A Notice of Hearing will be issued.
16I am not seized of this matter.
Dated at Toronto this 16th day of January, 2012.
“Signed by”
Sherry Liang
Vice-chair