Citation and Court Information
CITATION: Iyirhiaro v. Human Rights Tribunal of Ontario and TTC, 2012 ONSC 3015
DIVISIONAL COURT FILE NO.: 429/11
DATE: 20120522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
CHRISTOPHER IYIRHIARO
Applicant
– and –
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO and TORONTO TRANSIT COMMISSION
Respondents
Gladys Aghimien, for the Applicant
Andrea A. Cole, for the Human Rights Tribunal of Ontario
Norma Priday and Marni Tolensky, for the Respondent, Toronto Transit Commission
HEARD at Toronto: May 22, 2012
SWINTON J. (orally)
Overview
[1] The applicant seeks judicial review of a decision dated March 7, 2011 of the Human Rights Tribunal of Ontario (“the Tribunal”) dismissing his complaint of discrimination on the basis of race, colour and citizenship against the Toronto Transit Commission (“the Commission”) on the grounds that it was not timely. He also seeks review of a Reconsideration Decision of the Tribunal dated June 6, 2011.
Background
[2] The applicant’s complaint was made by way of an application under the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”). Subsection 34(1) of the Code requires that an application be made to the Tribunal within one year after the incident to which the application relates. Subsection 34(2) provides that an applicant may apply after the time period in s. 34(1) has expired 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”.
[3] In this case, the applicant alleges discrimination in the termination of his employment by the Commission on November 4, 1992 because a more junior white employee was re-hired shortly thereafter. His application was filed on July 20, 2010. The applicant says he did not discover the actions of the Commission that constituted the discriminatory behaviour until a chance meeting with his former supervisor on April 28, 2010.
[4] The Commission, in written submissions to the Tribunal, pointed to a letter dated November 25, 1994 of the applicant’s former counsel to the Workers’ Compensation Board (“the WCB”) in connection with a claim of the applicant before the WCB at that time. In the letter the applicant’s counsel indicated that the applicant intended to allege, amongst other things, that the Commission’s actions in terminating his employment were discriminatory, given the re-hiring of the more junior employee instead of the applicant.
The Decision
[5] The Tribunal found that the applicant believed by at least 1994 that a discriminatory action had occurred and that he could have made inquiries or filed a complaint at that time but did not do so.
[6] In rendering its decision, the Tribunal referred to para. 23 of Klein v. Toronto Zionist Council, [2009] HRTO 241, which addresses the operation of the discoverability principle in respect of applications under the Code. The Tribunal concluded that the discoverability principle did not apply in this case, stating in reliance on Klein that the discoverability principle “does not exist to allow aggrieved persons to delay in making a claim in order to gather evidence that confirms their suspicions or buttresses their case”.
[7] The Tribunal concluded that it was without jurisdiction to deal with the application under s. 34(2) of the Code in the absence of evidence that the delay was incurred in good faith.
[8] The applicant sought reconsideration of the decision, which was refused on June 6, 2001, as the Tribunal was not satisfied that any of the tests for reconsideration contained in its Rule 26 had been met.
The Issues Raised in this Application
[9] The applicant submits that he was denied natural justice because he was not given an opportunity to present evidence to the Tribunal at an oral hearing. In addition, he submits that the Tribunal erred in finding the delay was not incurred in good faith.
The Standard of Review
[10] With respect to the issue of natural justice, the Court need not determine the standard of review. Rather, the Court must decide if the requisite fairness was afforded.
[11] It is well-established that the standard of review with respect to the merits of a decision of the Tribunal is reasonableness (see Shaw v. Phipps, 2012 ONCA 155 at para. 10).
Was there a Denial of Natural Justice?
[12] There was no denial of natural justice by the Tribunal. The applicant had a hearing in writing. The Tribunal was not required to hold an oral hearing on the issue of its jurisdiction (see the Code, s. 43(2) and Rule 13). The applicant had notice of the Tribunal’s concern that the application was out of time (see the Notice of Intent to Dismiss). He was given an opportunity to present his case in writing and to reply to the TTC’s written submissions.
Was the Decision respecting Jurisdiction Reasonable?
[13] The decision of the Tribunal was a reasonable one. The record shows that the applicant was aware, at the latest in 1994, that an employee junior to him had apparently been re-hired after the applicant was laid off. In particular, the Tribunal had the copy of the 1994 letter from the applicant’s counsel to the WCB raising the issue of the re-hiring of the junior employee and alleging discrimination in his termination. Therefore, the Tribunal reasonably rejected the applicant’s submission that he discovered the necessary facts to bring his complaint only in 2010.
The Reconsideration Decision
[14] In the Reconsideration Decision, the Tribunal referred to the limited circumstances in which reconsideration of a Tribunal decision may be granted which are set out in Rule 26.5 of the Tribunal’s rules. In this case, the applicant relied on Rules 26.5(c) and (d). The Tribunal examined the cases cited to it and concluded that its decision did not conflict with any established jurisprudence or Tribunal procedure, and therefore Rule 26.5(c) was not engaged. In the absence of any other argument, the Tribunal also concluded that Rule 25.6(d) had not been satisfied.
[15] In our view, the Tribunal’s decision not to reconsider is reasonable and is entitled to deference by this Court.
The New Evidence
[16] The applicant seeks to put forth new evidence in his Application Record that was not before the Tribunal. The evidence is not admissible, as it is not put forth to show a denial of natural justice or an absence of evidence on an essential issue (see Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.)).
[17] The applicant merely seeks to supplement the record with evidence that could have been presented to the Tribunal in the applicant’s written submissions on the jurisdiction issue. Therefore, the affidavit evidence is struck.
Conclusion
[18] For these reasons, the application for judicial is review is dismissed.
COSTS
[19] I have endorsed the Application Record, “This application is dismissed for oral reasons delivered in court today. The Tribunal does not seek costs. Costs to the TTC are fixed at $750.00 if demanded.”
SWINTON J.
SACHS J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: May 22, 2012
Date of Release: June 4, 2012
CITATION: Iyirhiaro v. Human Rights Tribunal of Ontario and TTC, 2012 ONSC 3015
DIVISIONAL COURT FILE NO.: 429/11
DATE: 20120522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
CHRISTOPHER IYIRHIARO
Applicant
– and –
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO and TORONTO TRANSIT COMMISSION
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: May 22, 2012
Date of Release: June 4, 2012