Hyun Whan (David) Kim v. Ontario Government, 2015 HRTO 1403

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hyun Whan (David) Kim

Applicant

-and-

Ontario Government

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: October 21, 2015

Citation: 2015 HRTO 1403

Indexed as: Kim v. Ontario Government

WRITTEN SUBMISSIONS

Hyun Whan (David) Kim, Applicant

Self-represented

1The purpose of this Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2On June 22, 2015, the applicant filed an Application with the Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of disability. It is not entirely clear from the Application what the specific allegation of discrimination against the respondent is, but the applicant appears to be alleging that he was discriminated against by Seneca College between September 2011 and December 2012, and that he complained to the respondent in early 2014 about the discrimination but did not receive a response.

3In section 7(c) of the Application (“What was the date of the last event?”), the applicant answered that the last event occurred on April 8, 2015.

4On August 12, 2015, the Tribunal issued the applicant a Notice of Intent to Dismiss (“NOID”), which stated

The HRTO has reviewed the Application. It appears the Application is outside the HRTO’s jurisdiction because:

• while your response to question #7 of the Application alleges that the last incident of discrimination you experienced occurred on April 8, 2015, a review of your Application indicates that it is either not clear what incident of discrimination is alleged to have occurred on this date or how the incident described as occurring on that date constitutes an incident of discrimination within the meaning of the Code….

• The HRTO does not have the power to consider claims filed more than one year after the last incident of discrimination or the last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay [s.34(1)]. You do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law….

The Tribunal directed the applicant to provide written submissions in response to this issue.

5On August 20, 2015, the applicant filed written submissions and supporting documents in response to the NOID. He stated:

I have believe myself I have filed compaint in within 1 year of time of April 8, 2015 because I was still waiting for Ontario government response of Seneca College investigation and was not clear whether Ontario Premier or government has done the thorough investigation with Seneca College because I do not know how long I should wait to Ontario government's investigation will be come out and notice me.

I thought they will email, phone or call me to notify the result of investigation.

6Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381; Morin c. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

7In my view, it is plain and obvious that the Application is outside the Tribunal’s jurisdiction because the applicant has not identified an act of discrimination by the respondent against him or when it occurred. In these circumstances, it is not necessary to address whether Application should also be dismissed because it is untimely.

8The Application is dismissed.