Mark Wilson v. Employment Access Coalition for Persons with Disabilities, 2013 HRTO 455

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Wilson

Applicant

-and-

Employment Access Coalition for Persons with Disabilities

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: March 18, 2013 Citation: 2013 HRTO 455 Indexed as: Wilson v. Employment Access Coalition for Persons with Disabilities

WRITTEN SUBMISSIONS

Mark Wilson, Applicant

Self-represented

Introduction

1This is an Application filed on November 23, 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 the provision of services on the basis of disability. The Application briefly describes an event in which the respondent allegedly failed to assist the applicant in obtaining a particular job. The Application identifies the last incident of alleged discrimination as having occurred on February 10, 2010. This Application has not yet been served on the respondent.

2On December 19, 2012 the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant indicating that the Application appeared 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 January 31, 2013 to make submissions as to why the applicant’s delay in filing of the Application was incurred in good faith and consequently within the Tribunal’s jurisdiction. On February 8, 2013 the Tribunal received brief submissions from the applicant.

4The applicant’s entire submission for why he is of the view that his Application should continue is because “it is not fair to me as other people got job more quickly than I do as I just found out as it is more than one year. I was not aware of it for a while and so I file this claim which passed one year”.

5An application will only be dismissed at a preliminary stage, before it is served on a respondent, 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, Brooks v. North York General Hospital, 2010 HRTO 453.

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.

7The applicant filed his Application almost two and a half years after not obtaining a job. Therefore, the allegations against the respondent relate to events that occurred well before the one year timeframe set out in s. 34 of the Code.

8The 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 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.

9The applicant’s claim for the delay in filing his Application appears to be that he was “unaware for a while”. It is not particularly clear as to what he was unaware of and whether he is alleging that he was unaware of the events from February 2010 that gives rise to his Application. It is also not clear how long he was unaware and when and how he came to know of the events of February 2010.

10It appears the applicant may be raising an issue of discoverability, that he did not discover or have knowledge of the material facts to make his allegation that his rights under the Code had been breached until sometime after the alleged breach occurred and that this accounts for the delay in the filing of his Application.

11The Tribunal has found that a delay in filing an Application beyond the Tribunal’s one year time limit because one was unaware that one’s rights were possibly breached can constitute a good faith reason for a delay. Allowing a party to proceed under these circumstances ensures fairness to parties who simply cannot know within the stipulated timeframe that they have a case. See Iyirhiaro v. Toronto Transit Commission, 2010 HRTO 2017 and Klein v. Toronto Zionist Council, 2009 HRTO 241.

12While the applicant’s submissions are not particularly clear I cannot find that it is plain and obvious that The Tribunal does not have jurisdiction in this matter. It is not clear as to when the applicant became aware of the alleged act of discrimination and whether this may account for the delay in the filing of the Application. Consequently, the Application will continue to be processed.

13The Tribunal shall deliver the Application and a copy of this Interim Decision to the respondent. The respondent will be required to file a Response. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code. If the respondent takes the position that the Tribunal should dismiss the Application because of delay, it may apply to the Tribunal for an order or raise the issue in its Response. In that case, the applicant may be required to provide further submissions and evidence to support his position that the delay was incurred in good faith and that the respondent is not substantially prejudiced by the delay.