Perruzza v. Active Green and Ross, 2013 HRTO 436

Human Rights Tribunal of Ontario

B E T W E E N:

Enio Perruzza Applicant

-and-

Active Green and Ross, Ace Cruz and Veronica Cruz Respondents

DECISION

Adjudicator: Eric Whist Date: March 14, 2013 Citation: 2013 HRTO 436 Indexed as: Perruzza v. Active Green and Ross

1This is an Application filed on December 28, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. The Application identifies a number of alleged incidents of discrimination beginning in September 2009. The Application identifies the last incident of alleged discrimination as having occurred on December 22, 2011. The Application has not been served on the respondents.

2A Notice of Intent to Dismiss (“NOID”) was issued by the Tribunal on January 25, 2013, indicating 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.

3The NOID advised the applicant that he had until February 25, 2013, to make written submissions to the Tribunal as to why the applicant’s delay in filing of the Application was incurred in good faith and consequently within the Tribunal’s jurisdiction. The applicant has not provided submissions as directed.

4An application will only be dismissed at a preliminary stage, before it is served on the respondents, 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. See Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167, and Brooks v. North York General Hospital, 2010 HRTO 453.

5Section 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.

6The Application was filed one year and six days after the last alleged incident of discrimination identified in the Application. This is six days beyond the time limit set out in Section 34(1) (a). The Tribunal can accept an Application that is filed beyond the one-year time limit set out in Section 34 (1) (a) if it is satisfied that, pursuant to Section 34 (2), that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, an applicant must provide a reasonable explanation for the failure to pursue his or her rights under the Code in a timely manner.

7The applicant’s delay in filing his Application is not a long delay, but as the Tribunal explained in Gagne v. Maximum Mining, 2010 HRTO 689, (a Decision that coincidentally also dealt with a six-day delay) an applicant is still required to show that the delay was incurred in good faith:

Although the delay is short, 6 days, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith. The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith.”

8The applicant has not provided the Tribunal with any information that would allow me to conclude that the delay in the filing of his Application was incurred in good faith within the meaning of the Tribunal’s jurisprudence. Consequently the Application is dismissed.