HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Masoumeh Hashemimazinan
Applicant
-and-
Express
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Hashemimazinan v. Express
WRITTEN SUBMISSIONS
Masoumeh Hashemimazinan, Applicant
Self-represented
1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application has not yet been delivered to the respondent.
2On February 5, 2015 the Registrar sent to the applicant a Notice of Incomplete Application and a Notice of Intent to Dismiss (‘NOID”) the Application because it appeared that the Application was not within the jurisdiction of the Tribunal because it was not filed within one year of the last incident of discrimination.
3On April 14, 2015, the Tribunal received the applicant’s submissions in response to the NOID.
Decision
4The Application was filed on January 13, 2015 and alleges that the last incident of discrimination occurred on October 4, 2012. The applicant explains in the Application that it is not being filed within one year of the last incident because he immediately retained counsel who refused to represent him. The applicant states that he has had difficulty filling out the Application on his own. In his submissions the applicant also states that he lost his father on January 4, 2015 and has had to leave town for three months. The applicant also appears to be relying on this additional reason to explain the delay in filing the Application.
5Rule 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, request submissions from the applicant. 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 v. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.
6Section 34 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.
7In this case, based on the date of the last incident provided by the applicant which is October 4, 2012, the Application was filed 27 months after the date of the last incident of discrimination. There is no issue that the Application was not filed within one year of the last incident of discrimination. However, the Tribunal may have jurisdiction over the Application if I am satisfied that the delay in filing the Application was incurred in good faith.
8The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.
9Having considered the applicant’s explanations I find that he has failed to establish that he exercised good faith in the exercise of his rights. First, I note that the applicant’s father passed away after he filed the Application and therefore he cannot rely on this for a reason for the delay in filing the Application. Further, though the applicant states that he had difficulty filling out the form this and of itself cannot justify a delay in over two years in filing the Application. I find therefore that the applicant has failed to provide the Tribunal with a reasonable explanation for the delay in filing the Application.
Order
10The Application is dismissed because it is plain and obvious that it is outside of the jurisdiction of the Tribunal because of delay.
Dated at Toronto, this 4th day of May, 2015.
“signed by”
Geneviève Debané
Vice-chair