Ameha v. Toronto Parking Authority, 2017 HRTO 1494

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kiflom Ameha

Applicant

-and-

Toronto Parking Authority

Respondent

DECISION

Adjudicator: Bruce Best

Date: November 15, 2017

Citation: 2017 HRTO 1494

Indexed as: Ameha v. Toronto Parking Authority

WRITTEN SUBMISSIONS

Kiflom Ameha, Applicant

Self-represented

1This Application alleged discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant indicated in his Application that the last incident of alleged discrimination occurred on August 27, 2015. The Application was filed more than a year later, on July 24, 2017.

2On October 3, 2017, the Tribunal sent the applicant a Notice of Intent to Dismiss, noting that the Application was filed more than a year after the last incident of alleged discrimination and the applicant had provided no “good faith” reason for the delay.

3In response to the Notice, the applicant submitted that the delay was because he was trying to resolve the matter with his former employer and union, and was waiting for a positive answer, that he had been struggling with his illness, and was not able to fully concentrate. He provided correspondence demonstrating his ongoing communication with the employer and the union, including material apparently filed with the Ontario Labour Relations Board respecting a duty of fair representation application under s. 74 of the Labour Relations Act. He did not provide any medical documentation to support his claim respecting the role his illness played in the delay.

finding

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.

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 respondent. 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 Tribunal does accept that a delay may be in good faith because of an applicant’s disability. See Dionne v. Toronto (City), 2011 HRTO 317. However, the Tribunal has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; and James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 (Div. Ct.) at paras. 45-50. In this case, the applicant has not provided the Tribunal any information that could establish that his disability prevented him from pursuing his legal rights under the Code in a timely way.

8With respect to the applicant’s ongoing attempts to address the matter with his employer and union, the Tribunal has held on a number of occasions that pursuing alternative recourses does not amount to a good faith reason to delay filing an Application with the Tribunal. See, for example, Saxon v. Amherstburg Police Service Board, 2015 HRTO 318.

9Based on the above, I find it is plain and obvious that the applicant’s delay was not incurred in good faith, as that term has been interpreted by the Tribunal.

order

10For the reasons set out above, the Application is dismissed as untimely and therefore outside the Tribunal’s jurisdiction.