Troy Bartraw v. City of Kingston and Canadian Union of Public Employees, Local 109, 2017 HRTO 1014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Troy Bartraw Applicant

-and-

City of Kingston and Canadian Union of Public Employees, Local 109 Respondents

DECISION

Adjudicator: Yasmeena Mohamed Date: August 8, 2017 Citation: 2017 HRTO 1014 Indexed as: Bartraw v. Kingston (City)

WRITTEN SUBMISSIONS

Troy Bartraw, Applicant Self-represented

1The applicant filed an Application alleging discrimination with respect to employment because of record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). Specifically, the applicant alleges that the respondents discriminated against him by imposing a harsher disciplinary penalty of termination on him, for an alleged minor code of conduct violation in the workplace, than his colleague, who received a three day suspension for a more serious alleged code of conduct violation in the workplace.

2On June 22, 2017 the Tribunal sent the applicant a Notice of Intent to Dismiss (NOID), advising the applicant that it appears that the Application is outside the Tribunal’s jurisdiction. Specifically the NOID indicated at para 2:

• the Application was filed more than one year after the last incident of discrimination described in your Application and you do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”.
• a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s). The Tribunal does not have jurisdiction over general allegations of unfairness unless the unfairness is connected, in whole or in part, to one of the grounds specifically set out in Part I of the Code (e.g. race, disability, sex, etc.); see, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389).
• you allege discrimination based on the ground of “record of offences” but have failed to describe how the respondent [‘s/s’] behaviour was related to discrimination on the basis of a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment (s. 10 (e)). See for example Gravino v. P.R. Maintenance, 2009 HRTO 516; de Pelham v. Mytrak Health Systems, 2009 HRTO 172).

3The applicant filed submissions in response to the NOID on July 24, 2017. The applicant’s submissions did not address the issues raised in the NOID, but instead reiterated the allegations contained in his Application.

4An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381.

5For the reasons set out below, I have determined that it is plain and obvious that the Application is untimely and should be dismissed for delay.

ANALYSIS AND FINDINGS

6Section 34 of the Code provides that an application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondents. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

7The applicant submits that his termination was the last discriminatory event. The applicant was terminated on August 31, 2015. The Application was filed on February 16, 2017, more than 18 months after the alleged discriminatory event. The Application is clearly out of time.

8In the Application, the applicant submits that he filed his Application more than a year later because of “financial and other ways to settle but have got nowhere”. I could not find any information and/or any other explanation in the Application or the applicant’s NOID submissions with respect to the delay issue. If I understand the applicant’s submissions he filed the Application late because he was trying to resolve his issues with the respondents through other means, but was unsuccessful. There are a number of Tribunal decisions in which it has been determined that efforts to pursue ones 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, Kelly v. CultureLink Settlement Services, 2010 HRTO 508. Accordingly, I find that the reasons provided by the applicant for the delay are not “good faith” and the applicant has failed to provide the Tribunal with a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner.

9As such, I find that it is plain and obvious that the applicant’s delay in bringing forward his allegations with respect to his disciplinary penalties and termination was not incurred in good faith, as that term has been interpreted by the Tribunal.

10Considering my finding, I need not deal with the issue of any prejudice resulting to the respondents because of the delay and the remaining issues identified in the NOID.

11In these circumstances, it is plain and obvious that the Application is untimely and should be dismissed for delay.

ORDER

12For the reasons set out above, the Application is dismissed as untimely and therefore outside the Tribunal’s jurisdiction.