HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anthony James
Applicant
-and-
Toronto District School Board, Shelly Mediratta, Dave Johnson and the Individual Respondents listed in Schedule A
Respondents
RECONSIDERATION DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: James v. Toronto District School Board
WRITTEN SUBMISSIONS
Anthony James, Applicant
Self-Represented
Introduction
1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 1522, which dismissed the Application.
BACKGROUND
2On June 27, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected him to discrimination and reprisal with respect to employment and services. He indicated that the last alleged incident of discrimination/reprisal occurred on June 26, 2013.
3The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:
- (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.
4On June 29, 2015, most of the respondents filed a Response to the Application, which requested, among other things, that the Application be dismissed on a preliminary basis because it was filed on June 27, 2014, and was therefore outside the one-year time limit in s. 34(1) of the Code.
5On July 15, 2015, the applicant sent the Tribunal an email, which set out some of the Tribunal’s case law on delay, including the requirement that an applicant establish that any delay in filing an Application within the statutory time limit was incurred in good faith. However, he did not include written submissions explaining how this case law is applicable to the facts of his case.
6On July 22, 2015, the Tribunal delivered the Response to the applicant, and specifically directed him to file a Reply with written submissions addressing the respondents’ request to dismiss his Application on the basis that he did not file it within the prescribed time limit as set out in s. 34(1) of the Code.
7On August 19, 2015, the applicant filed a Reply, which stated that the respondents had put forward no reason or ground to dismiss his Application. He stated that he filed his Application within the appropriate time frame.
8On November 12, 2015, the Tribunal issued a Decision, which dismissed the Application as outside the Tribunal’s jurisdiction because it was filed outside the one-year time limit in s. 34(1) of the Code, and the applicant did not establish that his delay in filing the Application was incurred in good faith.
9On December 11, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
ANALYSIS
10Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.
11Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
12The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states: “Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO.”
13In his Request for Reconsideration, the applicant indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 b), c) and d). Specifically, he argued, first, that he faxed his Application to the Tribunal on June 26, 2014, which means that it was filed within the one-year time limit in s. 34(1) of the Code, and second, that he did not receive notice from the Tribunal that his Application was filed outside the one-year time limit.
14I disagree with the applicant’s arguments. I will deal with his second argument first. I do not accept that that he did not receive notice from the Tribunal that his Application was filed outside the one-year time limit in s. 34(1) of the Code. The Tribunal sent the applicant the following, which specifically stated that his Application was filed on June 27, 2014:
A Confirmation of Receipt of Application letter dated July 2, 2014.
A Notice of Incomplete Application letter dated July 11, 2014.
A Notice of Intent to Defer letter dated November 3, 2014.
An Interim Decision dated March 23, 2015.
15Most of the respondents then filed a Response to the Application on June 29, 2015, which specifically stated that the Application should be dismissed on a preliminary basis because it was filed on June 27, 2014, and was therefore outside the one-year time limit in s. 34(1) of the Code. The Tribunal then delivered the Response to the applicant on July 22, 2015, and specifically directed him to file a Reply with written submissions addressing the respondents’ request to dismiss his Application on the basis that he did not file it within the prescribed time limit as set out in s. 34(1) of the Code.
16Therefore, the applicant was clearly put on notice prior to the Decision dismissing his Application that his Application was filed on June 27, 2014, and was therefore outside the one-year time limit in s. 34(1) of the Code
17I will now turn to the applicant’s first argument. I do not accept that he filed his Application by fax on June 26, 2014. I find it very suspicious that he did not raise this in his written submissions on the timeliness issue prior to the Decision dismissing his Application, and is raising it for the first time in his Request for Reconsideration. Furthermore, the Tribunal’s records indicate that he filed his Application electronically on June 27, 2014 and then filed a further copy of his Application by fax after business hours on July 2, 2014. Finally, he has not submitted a fax record to show that he filed his Application on June 26, 2014.
18Therefore, there is no credible and reliable evidence that the applicant filed his Application by fax on June 26, 2014.
19Accordingly, I am not satisfied that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 b), c) and d).
ORDER
20The Request for Reconsideration is dismissed.
Dated at Toronto, this 10^th^ day of May, 2016.
“Signed By”
Ken Bhattacharjee
Vice-chair
SCHEDULE A
List of Individual Respondents Named in Application 2014-18081-I*
Ali Abdi
Wendy Banhan
Cindy Beniteau
Layden Bowles
Michael Brophy
Sylvie Burns
Lisa Cawthorne
Kavita Chhiba
Peter Costiniou
Craig Crone
Lynn Davy
Darshini D'Souza
Craig Duncan
Allan Easton
Diana Evans
Christine Gaitens
Chris Glover
Ron Gumbly
Joyce Harrison
Chuck Hay
Patricia Hayes
Mabel Ho
Karen Hurst
Dave Johnson
Sunita Joshi
Seema Kapil
Lisa Kobayashi
Peter Langford
Kwame Lennon
Tracey Mackenzie
Patricia Matsoukas
Shelley Mediratta
Kathleen Meighan-Garner
Pardeep Nagra Singh
Maxine Reid
Donelda Schwartzentruber
Lynn Shannon
Jean Shaw
Gladys Silveira
Bill Smith
Cindy Styles
Sandy Tierney
Ian Turner
Charlene Vassal
Lou Vavougis
Sean Woodsworth
Paul Addie*
Al Wolch*
*These respondents are not represented by Counsel for the Toronto District School Board