HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julian DeMattos
Applicant
-and-
Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: DeMattos v. Toronto Transit Commission
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of race colour and creed. The respondent has responded to the Application and the applicant has filed a Reply.
Request for Summary Hearing
2The respondent has filed a Request for Summary hearing to which the applicant has responded. The Request is denied. The Tribunal’s Rule 19A.6 provides that the Tribunal need not provide reasons when it declines to order a Summary Hearing and in these circumstances I find that it is appropriate to not provide reasons for my determination.
Other Matters
3In their Response and their Request the respondents take the position that the applicant’s allegations with respect to an alleged incident in October 2011 are out of time, the Application being filed in March 2013. Accordingly the respondent takes the position that the Tribunal has no jurisdiction to consider these issues.
4Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:
(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.
5The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination 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 may seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
6The phrase series of incidents in section 34(1)(b) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified. On the other hand the language of the section recognizes that it would not be appropriate that a human rights claimant file an Application at the first incident of what might be understood to be inappropriate treatment. The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative "series" may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame.
7In his Application the applicant alleges that on March 9, 2012 he was treated disrespectfully and in a discriminatory matter by a transit operator. He also alleges that he complained to the TTC about what he experienced as discriminatory behaviour in this and a prior incident which is alleged to have occurred in October 2011 and alleges that their response was inadequate. The October 2011 incident is alleged to have occurred on the same bus route but involving a different operator and another employee of the TTC. The essential allegation of the applicant in both incidents is that he was treated differently in the service provided to him than Caucasian passengers were and when he insisted on what he believed was the appropriate level of service he was verbally abused by TTC staff.
8The Application was filed on March 7, 2013. The alleged incident in March 2012 and the subsequent handling of the applicant’s complaints are timely. The alleged incident in October 2011 is out of time unless it can be considered one of a series of incidents with the incident in March 2012. The applicant claims that it is because the incidents were within one year of each other and both involved employees of the TTC and occurred on the same bus route.
9I do not agree. Although as described by the applicant the incidents are in some ways similar in that in each case he expected to be given a transfer by the bus operator without requesting one as he had observed others being treated and when he insisted he experienced verbal abuse from the operators. However there is nothing else that connects them, in particular the individuals involved are not the same. I also observe that the two incidents are more than five months apart. I am not satisfied that, given that it was not the same individuals allegedly involved, that these two discrete incidents can be considered a series of incidents within the meaning of section 34 of the Code.
10The applicant has offered no explanation for his not filing an Application in respect of the October 2011 incident until almost a year after the second and accordingly there is no need to consider whether or not there is a good faith explanation for the delay. It is also not necessary to consider whether or not the respondent would suffer substantial prejudice if it was called upon to respond to the October 2011 allegations, as it has claimed.
Other Matters
11The respondent has not indicated that it is willing to participate in mediation. If the respondent is willing to participate in mediation it may indicate same in writing to the Tribunal and the applicant within 7 days of the date of this Interim Decision failing which the case will be scheduled for a two day hearing.
12I am not seized.
Dated at Toronto, this 27th day of June, 2013.
“Signed By”
David Muir
Vice-chair