HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Inder Goyal
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Consumer Services and Real Estate Council of Ontario and Toronto Real Estate Board
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Goyal v. Ontario (Consumer Services)
WRITTEN SUBMISSIONS
Inder Goyal, Applicant
Self-represented
1This is an Application filed on December 11, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment. The applicant indicated that the grounds are record of offences and association with a person on the basis of a Code ground.
2On March 20, 2013, the Tribunal issued a Notice of Intent to Dismiss on the basis that the Application was not filed within 1 year of the last incident of alleged discrimination. The applicant filed submissions on April 9, 2013, in which he maintains that the Application should not be dismissed.
3Since the Application has not been served on the respondents, this Decision is based solely on the applicant’s version of the events.
4For the reasons that follow the Application is dismissed.
BACKGROUND
5The applicant was an agent for a Brokerage firm as a commissioned real estate agent. The Brokerage firm entered into a Commission Agreement with a developer in 2006.
6In 2008, the applicant retained counsel and filed a Statement of Claim at the Ontario Superior Court of Justice against the developer over alleged unpaid commissions owed to him. The developer defended the Claim and brought a motion for summary judgement on the basis that there existed no contract between it and the applicant.
7On October 7, 2010, the Court rendered a decision which granted the summary judgement dismissing the Claim on the basis that there was no contract between the applicant and the Developer. The Court concludes at paragraph 22:
Based on my review of the relevant authorities, it is well-settled in Ontario that a real estate agent or salesperson may only look to his/her broker for the payment of commissions. Consequently, if the payment of a commission is not forthcoming from the employing broker, the salesperson has no cause of action against third parties. On this basis, the Plaintiff has no cause of action against the named Defendant for the recovery of commissions.
8The Application and a review of the various correspondence sent by the applicant indicates that it is his belief that he is being treated as a second class citizen because he is a real estate agent and because the law prevents him from suing the developer.
9The applicant states that there should be no limitation period in this case because over 40,000 real estate agents are all being prevented from enforcing their rights and it is “ongoing discrimination”.
10I note that neither of the two named respondents were parties to the Claim.
THE LAW
11Section 34 states, in part:
(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.
12The first issue that I must determine is the date of the last incident of discrimination. I have some concerns that the Application does not specify an incident of discrimination against the two named respondents. Also, the Application may be a collateral attack on the Court’s decision rendered on October 7, 2010 which could have addressed the allegations of discrimination raised by the applicant during the course of the motion brought before it. However, for the purposes of this Decision, I will accept the alleged date of discrimination proposed by the applicant of October 7, 2010 – the date of the Court’s decision.
13I do not accept the applicant’s theory that the discriminatory conduct is ongoing because the law continues to exist and potentially restricts other real estate agents from initiating claims against clients. The applicant has not pointed to any events or facts which would support that he has been subjected to discriminatory conduct since October 7, 2010.
14As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” It is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.
15There was nothing to prevent the applicant from filing this Application within one year of the purported last incident of discrimination. I find that the applicant who had retained counsel was fully capable of initiating a timely claim before the Court and pursing his legal rights. The applicant did not file his Application with the Tribunal until approximately 25 months after the Court’s decision. This is a significant delay and there is no evidence to support that he was incapable of filing this Application within the time-limit specified by the Code.
16The applicant’s submissions, as a whole, do not support his position that the delay was incurred in good faith. It is not necessary, therefore, to address the issue of prejudice.
17The Tribunal is without jurisdiction to deal with this Application. Accordingly, the Application is dismissed.
Dated at Toronto, this 3rd day of May, 2013.
“Signed by”
Geneviève Debané
Vice-chair