Fletcher Jerome v. Shirley Ponka, 2016 HRTO 484

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fletcher Jerome

Applicant

-and-

Shirley Ponka

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: April 14, 2016

Citation: 2016 HRTO 484

Indexed as: Jerome v. Ponka

WRITTEN SUBMISSIONS

Fletcher Jerome, Applicant

Self-represented

Introduction

1This Application alleges that he experienced reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On January 15, 2016, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) this Application as it appeared to be outside of the Tribunal’s jurisdiction because the Application was filed more than one year after the last alleged incident; the Application fails to identify specific acts of discrimination within the meaning of the Code; and the Application fails to identify how the respondent’s alleged behaviour was related to his attempts to enforce his rights under the Code.

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.

Analysis and Decision

5This Application was filed on December 4, 2015. The date of the last incident, as indicated in his Application, is March 12, 2014; therefore, the alleged incidents occurred one (1) year and nine (9) months 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. 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 submits that he made a complaint to a superintendent who he alleges dragged the process beyond the one year limit before she provided her response.

Analysis and Decision

10There are a number of Tribunal decisions in which it has been determined that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Richards v. Ryerson University, 2015 HRTO 1210; Chen v. Toronto Police Services Board, 2012 HRTO 1889, 2010 HRTO 508.

11The Tribunal has consistently held that waiting for an internal complaints process or other legal proceedings to conclude does not in itself establish that a delay was incurred in good faith, particularly where the applicant could have filed a timely Application while continuing to pursue an internal complaint or another legal claim. See Verreault v. Ontario (Community and Social Services), 2015 HRTO 836) at paras. 10-11.

12The good faith reasons submitted by the applicant are very similar to those submitted by the applicant in Verreault above: that he was waiting for a response on an internal complaint.

13I find that the applicant has not established any good faith reasons for the significant delay in filing this Application.

14Having determined that the Tribunal does not have jurisdiction to hear this Application that was filed more than one year after the date of the last alleged incident, I do not need to make a determination of the other issues raised by the Application and outlined in the NOID.

15The Application is, therefore, dismissed.