Andrade v. The Home Depot, 2013 HRTO 243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruno Andrade

Applicant

-and-

The Home Depot

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: February 11, 2013 Citation: 2013 HRTO 243 Indexed as: Andrade v. The Home Depot

WRITTEN SUBMISSIONS

Bruno Andrade, Applicant Self-represented

1The applicant filed this Application on November 29, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that he was subjected to unfair discipline after advising his employer about his health condition. The applicant alleges that the unfair treatment culminated with the termination of his employment on September 29, 2011, as a result of concerns surrounding his authorization of the sale of a generator for an incorrect discount. The applicant alleges that, about two weeks after his dismissal, the exact generator was returned and the incorrect pricing again listed on the item on the sales floor.

3On December 10, 2012, the Tribunal issued a Notice of Incomplete Application and Notice of Intent to Dismiss (“NOID”) was issued, indicating that some information was missing from the applicant’s documentation and that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination.

4The applicant wrote to the Tribunal on January 31, 2013 indicating that, after the termination, he was experiencing various health concerns and elder care responsibilities, which the applicant contends gave rise to the delay in filing his Application.

DECISION

5An application will only be dismissed at a preliminary stage, before it is delivered to respondent parties, 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.

6Section 34 of the Code provides:

(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.

7At this point, the information and evidence that would be required in respect of a request under s.34 (2) to have the Tribunal deal with the Application has not been fully provided by the applicant, but enough detail has been given that it is not plain and obvious that an argument under s.34 (2) would be unsuccessful.

8The Tribunal notes that in assessing the issue of delay, the Tribunal will consider whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110.

9While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code: Dionne v. Toronto (City), 2011 HRTO 317; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

10As previously noted, this is not a final decision with respect to the issue of whether any part of the Application is barred by section 34 of the Code. If the respondent takes the position that the Tribunal should not deal with the Application, it may apply to the Tribunal. In that case, the applicant will be required to provide further submissions and medical evidence relevant to s. 34 (2).

11Accordingly, the Tribunal will continue to process the Application. The Application, the accompanying documentation, the NOID and the applicant’s submissions will be delivered to the respondent.

DIRECTIONS

12The Tribunal directs as follows:

i. The Tribunal will continue to process the Application;

ii. Along with this Interim Decision, the Tribunal will deliver a Notice of Application, a copy of the NOID and the applicant’s correspondence to the respondent; and

iii. The respondent is required to file its Response (Form 2) to the Application no later than 35 days after the Tribunal sends a copy of this Interim Decision and the accompanying documents and the respondent is directed to indicate in its Response if is willing to participate in mediation.

13I am not seized.