Colin Starzynski v. The Keg Steakhouse and Bar, 2015 HRTO 1049

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Colin Starzynski

Applicant

-and-

The Keg Steakhouse and Bar

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: August 6, 2015

Citation: 2015 HRTO 1049

Indexed as: Starzynski v. The Keg Steakhouse and Bar

WRITTEN SUBMISSIONS

Colin Starzynski, Applicant

Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of sex, sexual solicitation and association with a person identified by a prohibited ground of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On June 24, 2015, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because the Application appeared to be outside of the Tribunal’s jurisdiction on the basis of delay. The incidents of discrimination complained occurred more than one year prior to the Application being filed. Although there are no dates provided for the incidents described in the “what happened” section of the Application, the date provided for the last event is April 24, 2008.

3A NOID is issued before the Tribunal delivers an application to the respondent. The Tribunal will only dismiss an application following a NOID if it is plain and obvious that the application is not within the Tribunal’s power to consider.

4The applicant has provided submissions in response to the NOID. For the reasons that follow, I find that the Tribunal does not have power to consider this Application.

5This Application was filed on March 9, 2015. The alleged incidents occurred 7 years prior to the filing of the Application.

6Section 34 of the Code requires that a person wishing to pursue a claim of discrimination bring the claim forward by filing an application within one year of the alleged incident of discrimination, or where there is a series of incidents, within one year of the date of the last incident of discrimination. The provision has been found to be mandatory subject to section 34(2) which permits a person to apply to the Tribunal after the expiry of the one-year period 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.

7The limitation period is consistent with the policy objective, expressed elsewhere in the Code that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year of the last incident of discrimination. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

8The alleged incidents are clearly out of time; however, the Tribunal may deal with otherwise untimely allegations where the applicant is able to establish a good faith explanation for the delay and satisfy the Tribunal that there would be no substantial prejudice to any other party in the proceeding. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing the application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. See Miller, above.

9The applicant made no submissions that directly address the question of whether the delay was incurred in good faith. The applicant referenced a decision of the Criminal Injuries Compensation Board to extend its two year limitation period for filing. The applicant also submitted that the Criminal Code has no limitation period for an indictable offence and that the Victims Bill of Rights states that victims of crime should be treated with compassion and fairness.

10It may be true that the Criminal Injuries Compensation Board may exercise its own discretion in extending its limitation period; and that limitation periods may not apply in the criminal justice system. However, the Tribunal can only exercise its discretion under section 34(2) of the Code as stated above. The applicant has provided no explanation for the extremely long delay in filing the Application. As the applicant has failed to demonstrate that the delay was in good faith, it is plain and obvious that the Tribunal does not have the power to consider this Application. Having found that there is no good faith reason for the delay, it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay: Gagne v. Maximum Mining, 2010 HRTO 689.

11The Application is, therefore, dismissed.