Marvin Lagace v. Coca Cola, 2013 HRTO 516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marvin Lagace

Applicant

-and-

Coca Cola

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: March 26, 2013

Citation: 2013 HRTO 516

Indexed as: Lagace v. Coca Cola

WRITTEN SUBMISSIONS

Marvin Lagace, Applicant

Self-represented

1The applicant filed this Application on June 25, 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 age.

2The applicant alleges that, with the change in his union and the transfer of his pension benefits in 2004, employees under the age of 50 were permitted to buy back into the respondent’s pension at the time of retirement and that than employees over the age of 50, like him, were not. Based on the applicant’s narrative, it appears that the applicant was advised of this change of union and transfer of pension benefits in 2004-2005.

3On January 11, 2013, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) on the basis 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.

4The applicant filed submissions on January 23, 2013 indicating that he will be employed by the respondent until February 27, 2013 and that he had yet to receive his pension statement. The applicant’s documentation also appears to indicate that the applicant seeks clarification regarding the prescribed pension plan and the basis for the differential treatment.

Decision

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.

6An application will only be dismissed at a preliminary stage before it is delivered to 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: 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.

7While the applicant was informed of the change in pension plan benefits in 2004-2005, it appears that he was scheduled to retire in February 2013. It is unclear when the alleged of discrimination occurred and was experienced by the applicant. As such, at this point, the information and evidence that would be required in respect of the issue of delay is not fully before the Tribunal; however, enough information has been given that it is not plain and obvious that the alleged acts of discrimination do not come within the one-year time limitation of the Code and that an argument under section 34(2) would be unsuccessful.

8Accordingly, the Tribunal will continue to process the Application. The Application, the NOID and the applicant’s submissions and the accompanying documentation will be delivered to the respondent. The continuation of this Application in the Tribunal’s process is not a final decision regarding the Tribunal’s jurisdiction with respect to the issue of delay or any other jurisdictional matter.

DIRECTIONS

9The 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;

iii. The respondent is required to file its Response (Form 2) no later than 35 days after the Tribunal sends a copy of this Interim Decision and the accompanying documents; and

iv. The Tribunal may issue further directions with respect to any issues and/or may schedule future steps accordingly.

10I am not seized.