Jose DaPonte v. Unicco, 2013 HRTO 552

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose DaPonte

Applicant

-and-

Unicco

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 4, 2013

Citation: 2013 HRTO 552

Indexed as: DaPonte v. Unicco

WRITTEN SUBMISSIONS

Jose DaPonte, Applicant ) Peter Mancini, Representative

1The purpose of this Interim Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2On December 14, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability.

3In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “January 14, 2011”. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), he did not write anything. In section 8 (“What Happened”), he set out the last event as follows: “The Respondent issued a letter on January 14, 2011 stating that they could no longer accommodate the Applicant on modified duties and that he would require a medical clearance to return to work.”

4The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

5On February 5, 2013, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss, which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal directed the applicant to provide written submissions in response to this issue.

6On February 6, 2013, the applicant filed written submissions, which stated that the Application was incomplete, and that the last alleged incident of discrimination occurred on May 17, 2012. He stated that he is still an employee, but the respondent will not accommodate his disability-related needs.

7Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

8In my view, based on the applicant’s submissions, it is not plain and obvious that the Application was filed outside the one-year statutory deadline. However, this is not a final decision with respect to the issue of whether the Application is barred by s. 34 of the Code because it is untimely.

9The Tribunal shall serve the Application, the applicant’s written submissions and a copy of this Interim Decision on the respondent.

10I am not seized of this matter