Felix v. Shoppers Drug Mart, 2014 HRTO 1045

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Felix

Applicant

-and-

Shoppers Drug Mart, Mamak Shafai, Jamie Jones and David Smith

Respondents

DECISION

Adjudicator: Dawn J. Kershaw
Date: July 16, 2014
Citation: 2014 HRTO 1045
Indexed as: Felix v. Shoppers Drug Mart

WRITTEN SUBMISSIONS

Hans Felix, Applicant

Self-represented

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of race, colour, ancestry, place of origin and citizenship contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On February 18, 2014 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) and directed the applicant to respond to the issues identified by no later than March 20, 2014.

3The NOID states 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 your Application and you do not 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”.

4The allegations relate to events that occurred in 2010. In the Application and the subsequent submissions filed on March 14, 2014, the applicant refers to a Civil Claim SC-12-12255-00 in which he states there is a motion on March 20, 2014 and a trial on May 6, 2014, which apparently deals with the same issues as in this Application.

5The applicant submits that to dismiss a claim which is ongoing in other proceedings prior to that proceeding ending does not make sense, and itself would be prejudicial and biased. He further submits there is no "good faith" comparison in this matter except to facilitate an employer to continue abusing its co-workers.

6The applicant also refers to his prior Application, HRTO file 2010-06917-I, which raised the same issues against several of the same respondents as in this Application. That Application was dismissed on January 12, 2011, 2011 HRTO 89, as an abuse of process. The Decision states at paragraph 10 :

The materials filed by the applicant since the previous Interim Decision are obviously offensive and violate both the Tribunal’s Rules and its previous orders. They compare the respondents to Nazis, contain veiled threats against the respondents, attack the Tribunal’s integrity, and use profanity. The applicant refused to remove the insulting middle names from the Application and cease copying Tribunal members individually despite a clear direction to do so.

7Correspondence also was received from counsel for the corporate respondent in this matter on November 22, 2013. Counsel stated that this Application is the same as 2010-06917-I and that, after that Application was dismissed, the applicant commenced a Small Claims Court action with respect to the same issues.

analysis and decision

8Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident in certain circumstances. Section 34 states:

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.

9In this case, I find that any act of discrimination took place more than one year prior to the Application being filed, and therefore the Application does not meet the requirements of section 34(1).

10I must therefore consider whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice. The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

11If the applicant’s reference to the outstanding civil claim is his submission with respect to “good faith”, this Tribunal repeatedly has rejected the submission that waiting for another legal proceeding to conclude before pursuing one’s rights under the Code constitutes a good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, Mu v. Cargill Foods, 2011 HRTO 846, at paragraph 42 and others.

12Having considered the applicant’s Application and his subsequent filing, I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code, and the Tribunal has no jurisdiction to deal with this Application.

13In addition, this Application clearly is an attempt to circumvent the 2011 Decision in which the applicant raised the same issues as in this Application and which was dismissed, and this also is an abuse of process.

order

14This Application is dismissed.