Nur Omar Qase v. Canadian Red Cross Society, 2015 HRTO 241

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nur Omar Qase

Applicant

-and-

Canadian Red Cross Society

Respondent

DECISION

Adjudicator: Eli Fellman

Date: February 26, 2015

Citation: 2015 HRTO 241

Indexed as: Qase v. Canadian Red Cross Society

WRITTEN SUBMISSIONS

Nur Omar Qase, Applicant

Self-represented

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race and colour.

2The last incident of alleged discrimination took place on February 22, 2012. This Application was filed on October 15, 2014, over two years later.

3On December 31, 2014, the Tribunal sent a Notice of Intent to Dismiss to the applicant. The Notice of Intent to Dismiss warned that the Application may be dismissed because it is outside of the Tribunal’s jurisdiction because of delay. The Application has not yet been served on the Respondent.

4Section 34 of the Code provides:

(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.

5Section 34 means that the Tribunal will not exercise its discretion to consider deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

6The applicant provided written submissions addressing the Notice of Intent to Dismiss on January 18, 2015. He submits that he has not delayed filing his Application because he originally filed the Application with the Tribunal within one year of the last incident. He also states that:

(…) I also made follow up to get information about my application but I was advised to wait many times. Just before I sent my last application I was told my application was lost and to resent it again.

I sent the some email that I communicated with your office. I have not delayed my application and I am requesting continuation of processing my application.

7The applicant also included with his submission an identical copy of his Tribunal application which indicates a signature date of August 11, 2012, and a five-page narrative description of the alleged discrimination dated May 20, 2012. However, the applicant has not provided any evidence that these documents were received by the Tribunal in 2012, such as a letter acknowledging receipt of his application or emails or other correspondence between the applicant and the Tribunal respecting any attempt to file an application. Further, the applicant’s submission lacks details respecting his claim that the Tribunal lost his original application, such as when this allegedly happened and who told him that it was lost.

8When the applicant filed his Application with the Tribunal on October 15, 2014, he included a cover email stating that “I have sent this document long ago and tried to follow up several times through phone communication but it seems something is not right.” I note that the applicant does not suggest in this email, which predates his January 18, 2015 submission, that the Tribunal lost his original application in 2012.

9Acting pursuant to my direction, Tribunal staff reviewed the Tribunal records but could not locate any documents from the applicant or correspondence with the applicant dating prior to this current Application being filed in October 2014.

10As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “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.” The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously.

11In this case, the Application does not comply with section 34(1) of the Code because it was filed approximately 30 months after the last incident of alleged discrimination.

12Therefore, the Application can only be considered 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 in accordance with section 34(2) of the Code.

13In Miller at para. 24, the Tribunal held that where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Further, the applicant bears the onus of proving that any delay was incurred in good faith and must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

14I find that the applicant has not established that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. There is no reliable evidence to support the applicant’s claim that the delay was due to the Tribunal losing an earlier copy of his Application. In particular, I note that there is no evidence of any communication between the applicant and the Tribunal about such an application within one year of the last incident of alleged discrimination.

15Given my finding that the delay was not incurred in good faith, it is not necessary for me to consider the question of whether the respondent has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579 at para. 16.

16Therefore, this Application cannot proceed under section 34 of the Code and is dismissed.