Abrego v. St. Joseph’s Health Care, Parkwood Site, 2013 HRTO 654

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Abrego Applicant

-and-

St. Joseph’s Health Care, Parkwood Site Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: April 18, 2013

Citation: 2013 HRTO 654

Indexed as: Abrego v. St. Joseph’s Health Care, Parkwood Site

WRITTEN SUBMISSIONS

Angela Abrego, Applicant

Chris Surowiak, Representative

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 race, colour, disability and age.

2In response to Question 7 of the Form 1, the applicant indicated that the last event was November 21, 2010. The Application also notes that there is an on-going Workplace Safety and Insurance Board claim.

3On March 8, 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 March 8, 2013 stating that the November 2010 date was noted in error. The applicant explained that the November 2010 date referenced the date of the applicant’s workplace injury. The applicant contends that the actual date of the last incident of alleged discrimination is April 30, 2012.

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.

7Based on the applicant’s explanation, it appears that the November 2010 date referenced the applicant’s workplace injury and the actual date of the last alleged discriminatory event was April 30, 2012. 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.

8Accordingly, the Tribunal will continue to process the Application. The Application, the NOID and the applicant’s submissions 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. The Tribunal notes that given the on-going WSIB matter, there may also be an issue with respect to deferral.

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.