Covelli v. Toronto (City), 2016 HRTO 273

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Franco Covelli

Applicant

-and-

City of Toronto

Respondents

DECISION

Adjudicator: David Muir

Date: February 29, 2016

Citation: 2016 HRTO 273

Indexed as: Covelli v. Toronto (City)

1This is an Application filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) The Application was filed on November 5, 2015 and relates to the termination of the applicant’s employment in October 2010..

2On January 19, 2016 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction.

3The NOID noted that from a review of the Application it appeared that it had been filed more than a year after the last incident of discrimination and that the applicant had not cited facts that constitute good faith within the meaning of section 34(1) of the Code.

4The applicant responded to the NOID. The applicant asserted without any medical information that he was prevented from filing this Application because of a mental health disability.

5Under 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, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

6I find that this Application is out of time and it is plain and obvious that the applicant has plead no facts which would support a finding that the delay was incurred in good faith.

7Sections 34(1) and (2) of the Code provide:

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.

8These provisions have been found to be mandatory subject to section 34(2). The 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, when they may seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The applicant must at a minimum provide a reasonable explanation for the delay.

9This Application is out of time. As indicated above it relates to the termination of the applicant’s employment in 2010. Since that time a grievance was filed and determined by an arbitrator after 18 days of hearing in which the applicant apparently participated without difficulty. In the Application the applicant cited as the date of the final incident of discrimination the date that the arbitration award was released, November 6, 2014. The Application was filed 364 days later than that.

10In his NOID submissions the applicant asserts that he is a person with a disability. There is no medical evidence provided to support this assertion and the medical information provided in the submissions is confined to the following statement:

The applicant, Mr. Covelli, specifically alleges that his disability prevented him from taking to steps to assert his rights under the Code. His disability is ongoing and permanent and did not stabilize until September 2015 and even then did not stay stable past the New Year.

11I find that it is plain and obvious that the Application is out of time being filed at least five years after the events complained of. I also find that it is plain and obvious that the applicant has not provided a reasonable explanation for the delay. The applicant asserts a medical disability prevented him from filing the Application for five years but provided no medical information to support what can only be described as an extraordinary proposition. The applicant’s assertion is also entirely contradicted by the fact that he participated in the grievance arbitration over 18 days in the intervening period of time. It is entirely unclear how the applicant could have participated in the arbitration including giving evidence about the events leading to his termination but was unable to complete the Application related to the identical issues. .

12For all of these reasons I find that it is plain and obvious that this Application is outside of the jurisdiction of the Tribunal to decide and accordingly it is dismissed.