HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raymond Nmakwe
Applicant
-and-
Salvation Army, Ottawa Grace Manor
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Nmakwe v. Salvation Army, Ottawa Grace Manor
WRITTEN SUBMISSIONS
Raymond Nmakwe, Applicant
Hammed Hassan-Olajokun, Representative
Introduction
1This is an Application filed on August 19, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race.
2The applicant alleges that he was not advised of his rights to consult a legal representative when he was accused of injuring a resident in the course of his employment and forced to resign.
3On September 12, 2013, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) prior to the Application being sent to the respondent, advising that it appeared that the Application was outside the HRTO’s jurisdiction because:
a. the Application was filed more than one year after the last incident of discrimination in the Application, and the reasons cited for that do not appear to constitute “good faith” within the meaning of the HRTO’s case law under s. 34(1), for example, Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224; and
b. the Application fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.
4The applicant wrote to the Tribunal on October 7, 2013 stating that there are two components to his claim:
a. The employer violated the applicant’s rights under the Charter of Rights and Freedoms by not advising him of his right to consult legal counsel; and
b. The applicant was discriminated against in his employment because the resident he allegedly injured made racist comments to him and the employer failed to investigate this.
5The applicant failed to address the issue of the Application being filed more than one year from the date of the last incident other than to ask that this one year requirement be waived because the applicant’s Charter rights were violated.
facts and analysis
6I deal first with the issue of whether or not the Application was filed more than one year after the date of the last incident of discrimination because, if I find that it was and there is no good faith explanation for the delay, I therefore need not address the issue of whether the applicant has identified any discriminatory acts within the meaning of the Code.
7Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:
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.
8In this case, the only reference to racist comments allegedly made by a resident in the respondent’s facility was in a June 6, 2011 letter sent by the respondent to the applicant’s Union. The respondent advised at that time that it had no knowledge of any racist comments until the investigation of the applicant’s alleged injury of the resident took place in April, 2011. The applicant initially was suspended from his employment and then resigned. The applicant alleges that the last act of discrimination took place on April 10, 2012. Given that the Application was not filed until August 19, 2013, I find that any acts of discrimination took place more than one year prior to the Application being filed, and therefore the Application does not meet the requirements of section 34(1).
9I must therefore consider whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice.
10I will first look at the issue of whether the delay was incurred in good faith. The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.
11The reasons given by the applicant for his delay do not address specifically the issue of the one year time period but simply ask that the time period be waived because the applicant’s Charter rights were violated and racist comments were made to him. The applicant gives no reasons for the delay in bringing this Application, and therefore I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code, and the Tribunal has no jurisdiction to deal with this Application. Consequently, it is not necessary to determine whether the respondent would suffer any substantial prejudice as a result of the delay.
12It also is not necessary for me to deal with the issue of whether the applicant has identified any specific acts of discrimination within the meaning of the Code.
13For these reasons, the Application is dismissed.
Dated at Toronto, this 17th day of October, 2013.
“Signed By”
Dawn J. Kershaw
Vice-chair