Gazo v. I.B.E.U. Local 353, 2013 HRTO 916

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Gazo

Applicant

• and-

I.B.E.U. Local 353 and T.E.I.B.A.S. Ltd., Ontario Superior Court of Justice, Binsky & Associates, T.D. Canada Trust, RBC Royal Bank and Her Majesty the Queen in right of Ontario, as represented by the Minister of Community and Social Services

Respondents

decision

Adjudicator: Ena Chadha

Date: May 27, 2013

Citation: 2013 HRTO 916

Indexed as: Gazo v. I.B.E.U. Local 353

WRITTEN SUBMISSIONS

John Gazo, Applicant

Self-represented

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on November 22, 2012, alleging discrimination with respect to services, goods and facilities on the basis of marital status.

2In support of his Application, the applicant submitted voluminous documentary material regarding various matters, including his divorce; documents from the Family Responsibility Office regarding support arrears and garnishment; court orders; banking correspondence; and pension information; as well as other items.

3In response to Question 7 of Form 1 which enquiries as to the date of the last incident, the applicant indicated that the events were in December 2003, February 2004, February 2005, February and May 2006 and May 2011. The applicant explained that the delay in filing the Application was because he was trying for ‘several years to straighten out this matter by other legal ways’.

4Based on the applicant’s documentary materials, it appears that some of the respondents include federally regulated banks and lawyers who represented other individuals involved in the applicant’s legal matters.

5On February 17, 2011, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) to the applicant. The Notice indicated that the Application appeared to be outside the Tribunal’s jurisdiction because:

• the Application was filed more than one year after the last incident of discrimination described in the Application and the applicant does appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”;
• the respondent appears to be a federal government department, agency or a federally regulated employer or service provider. See for example Masood v. Bruce Power, 2008 HRTO 381;
• the issues raised relate to the conduct of a lawyer representing a party in another legal proceeding and the Tribunal has stated that the relationship between a lawyer and an opposing party is not covered by the Code: Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390;
• a respondent is an arbitrator, adjudicator or judge. The Tribunal has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: see Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115;
• a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s).

6The applicant filed submissions on May 2, 2013. While the applicant’s submissions are not entirely clear, it appears that the applicant has attempted to explain that his claims relate primarily to his union and their financial institutions.

DECISION

7Section 34 of the Code states:

(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.

8The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim. In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207.

9The Application was filed in November 2012 and the alleged incidents of discrimination purportedly took place from December 2003 to May 2011. The Application was clearly filed outside of the Code’s one-year time limit.

10The applicant stated in Form 1 that he was delayed in filing his Application because he attempted for several years to seek legal recourse elsewhere. The applicant’s submissions and documentation appear to suggest the Application is not untimely because of his on-going efforts to pursue his rights through various entities and other legal avenues organizations, including the Ombudsman’s office. The applicant also appears to contend that he has experienced significant personal and financial hardship because of the alleged unfairness.

11With respect the applicant’s submission regarding his attempts to straighten out the matters in other legal ways, it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

12With respect to the applicant’s argument that the Application is timely because he continues to experience hardship, I note that any alleged continuing effects of the alleged discriminatory act does not extend the Code’s section 34(1) timeline. A “continuing contravention” pursuant to section 34(1)(b) requires a succession or repetition of separate acts of discrimination of the same character; that is separate contraventions of the Code. One act of discrimination with continuing effects is not a continuing contravention. See Visic v. Ontario (Human Rights Commission), 2008 CanLII 19784 (ON SCDC), 236 O.A.C. 110 (Ont. Div. Ct.) and Mafinezam v. University of Toronto, 2010 HRTO 1495.

13Additionally, the Tribunal has held that to allow an applicant to revive an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code. See Seetharam v. Iogen, 2010 HRTO 1811.

14In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because delay. I note that given my findings with respect to delay, I will not address the other jurisdictional bases, including concerns with respect to federal jurisdiction, lack of nexus to grounds or social areas, etc., which likely preclude this Application from proceeding against the various respondents.

15Accordingly, the Application is dismissed.