Santiago Quimado v. S.A. Armstrong Ltd. and John Field, 2009 HRTO 110

Human Rights Tribunal of Ontario

B E T W E E N:

Santiago Quimado Applicant

-and-

S.A. Armstrong Ltd. and John Field Respondents

DECISION

Adjudicator: Alison Renton Date: February 3, 2009 Citation: 2008 HRTO 110 Indexed as: Quimado v. S.A. Armstrong

INTRODUCTION

1This is an Application filed on October 10, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Applicant alleges discrimination or harassment in employment on the basis of race, ancestry and disability. This Decision deals with the issue of delay in filing the Application.

BACKGROUND

2The following facts are based on the materials and documentation filed by the applicant in support of his Application.

a) IBM

3The applicant worked for IBM as a senior technician from 1975 to 1991, when he was terminated. The applicant retained a lawyer and commenced a wrongful dismissal court action against IBM (court file no. 93-CQ-36439). He commenced another court action against IBM as well as against Aetna Life Insurance (court file no. 95-CU-95918) ("the second court action"). An Order of the Court dismissed the second court action against IBM. The applicant appealed the Order to the Court of Appeal.

4On January 13, 1998, the applicant signed a full and final release in favour of IBM, including a release of any claims under the Code. The execution of the release was witnessed by a friend of the applicant on the same date. In July 1998 the Court of Appeal dismissed the appeal noting that the applicant had signed a release against IBM.

5The applicant claims in his Application that he was forced to sign the release through fraudulent means. He claims that he was represented by a disbarred lawyer, who pressured the applicant and his witness to sign the release in blank, which was subsequently altered by the disbarred lawyer. He also claims that he was not in a mental state to object or question the disbarred lawyer's actions, because of a psychiatric condition. He attached to his Application medical documentation from 1992 and 1994 and from 2004 to 2008. He has since retained another lawyer and commenced a further court action against his former counsel, Aetna Life Insurance Company Limited and IBM Canada Ltd (court file no. 07-CV-326-045PD3). He also attached a copy of a July 15, 2005 letter he sent to the Ontario Court of Justice (General Division), setting out his concerns about his legal representation and the release he signed in 1998.

6In addition to the above, in his Application, the applicant makes allegations about the personal respondent, John Field, a lawyer who represented IBM. He alleges the personal respondent was "authoritarian, impatient and intolerant" and placed the applicant on "probation without justification". He alleges that his former employer, IBM, and his managers discriminated against him. He alleges the judge who dismissed the second court action against IBM "stopped functioning" and inflicted mental distress. He alleges the Court of Appeal judges used the fraudulent release to dismiss his action. In his Application, he states that he wants to appeal the fraudulent actions of the lawyers and the Court of Appeal judges. The focus of his Application is about the incidents described above.

b) S.A. Armstrong

7While not the focus of his Application, the applicant also names S.A. Armstrong ("Armstrong") as a respondent. The applicant worked for Armstrong as a machinist from 1996 to 1997. He alleges that he suffered a workplace injury in May 1997 about which a claim for benefits was filed under the then Workers' Compensation Act, 1997. He alleges that about 2 months after his workplace injury, he was ready to return to work, but Armstrong denied him that opportunity. He alleges that he looked for other work but that some employers denied him work because of his social insurance number. He attached to his application medical documentation from 1992 and 1994 and from 2004 to 2008. He attached a decision from the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") dated August 30, 2007 pertaining to a hearing before that tribunal on July 30, 2007 in which he was represented by a consultant. He also attached to his Application a copy of request for reconsideration of the WSIAT decision from September 2008 and a copy of correspondence from WSIAT acknowledging receipt of his reconsideration request.

DELAY

8Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34 (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 release; 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.

9Under s. 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in s. 34(2) exist.

10The Tribunal sent the applicant a Notice of Intent to Dismiss. The Tribunal advised that his Application appeared to be outside of the Tribunal's jurisdiction because it was filed more than one year after the last incident of alleged discrimination and that it was not satisfied the delay was incurred in good faith and that no substantial prejudice would result to any person affected by the delay. The Tribunal sought the applicant's submissions to explain why the Application was within the Tribunal's jurisdiction.

11In those submissions the applicant stated that he had been depressed and under a psychiatrist's care. The applicant provided medical documentation from 1992, 1994 and between 2004 and 2008, but no medical documentation between 1994 to 2004. The medical documentation provided does not address or provide any opinion as to why the applicant was unable to commence a human rights proceeding before October 10, 2008, particularly when he had commenced and continued other legal proceedings against the respondents in other forums.

12As indicated above, the Application was filed 17 years after the applicant stopped working for IBM, 10 years after the release was signed and 10 years after the Court of Appeal dismissed his appeal. The Application was filed 11 years after the applicant had his alleged workplace injury with Armstrong.

13In Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, the Tribunal considered whether an Application could proceed despite a five-year delay in filing. In that case, the Application was filed on the applicant's behalf by his mother, who was named as his litigation guardian or substitute decision maker. The applicant submitted that his mother's "mental disability" and "stress" were some of the factors for the delay.

14The Tribunal was not satisfied the delay in Corrigan was incurred in good faith. In making that determination, the Tribunal stated at para. 25:

The references to "mental disability" and "stress" resulting from the inability to resolve the situation also do not provide a valid justification for the delay. Counsel for the applicant referred to specific periods (in 2004 and 2005) during which the applicant's mother required mental health counselling. Whatever the nature of the mental condition suffered by the applicant's mother during part of the time in question, it is apparent that it did not prevent her from taking a number of steps to advocate on behalf of her son. The applicant's mother believed that her son had suffered discrimination in his education, and took the initiative to pursue a number of avenues in person, in writing and otherwise to try and achieve a remedy.

15The Tribunal in this case is not satisfied that the delay in filing this Application was incurred in good faith. At a minimum, the Tribunal requires a reasonable explanation why an applicant did not pursue his or her rights under the Code in a timely manner. In the circumstances before me, there are no reasonable explanations provided.

16While the applicant states that he was depressed and under psychiatric care as the reasons for the delay in commencing his Application, as set out above, the applicant commenced and continued a number of legal proceedings against IBM and Armstrong.

17Throughout the 1990s, the applicant commenced various court actions against IBM. Those court actions ended in July 1998 when the Court of Appeal dismissed the applicant's appeal because of the release he signed against IBM earlier in 1998. That release released IBM from any claims under the Code. Despite the court actions ending in 1998, the applicant contacted the courts in July 2005 to express concerns behind the signing of the release and the cessation of his court actions. The applicant also retained the services of a lawyer to commence another court action against his former lawyer(s), IBM, and Aetna Life Insurance Company Limited. This action appears to have been initiated in 2007, with the applicant swearing an affidavit in support of his court action in 2007. The applicant provides no information as to why he could commence and participate in those actions but not pursue allegations of discrimination against IBM and/or its lawyer under the Code.

18Similarly, the applicant commenced a claim for benefits under the then Workers' Compensation Act, 1997 in 1997 in relation to his employment at Armstrong. WSIAT issued a decision in August 2007 and the applicant requested reconsideration of that decision in 2008. The applicant provides no information as to why he could commence and participate in proceedings pertaining to his alleged workplace injury but not pursue allegations of discrimination against Armstrong under the Code.

19In these circumstances, I am not satisfied that the applicant was unable, for valid reasons, to pursue the allegations under the Code against the respondents and that the delay was incurred in good faith.

20I therefore find that the circumstances of section 34(2) do not apply. This Application cannot proceed under section 34(1) of the Code and it is hereby dismissed.