HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Lutz

Applicant

-and-

Corporation of the City of Toronto

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: July 24, 2009

Citation: 2009 HRTO 1137

Indexed as: Lutz v. Toronto (City)

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 11, 2009, alleging that the respondent discriminated against and harassed him in respect of employment on the grounds of disability, ancestry, and reprisal. Among other things, the applicant alleges that, following his return to work from disability leave in September 2006, the respondent employer harassed him by requiring him to bring a sick note each time he was absent from work due to illness, even for one day. The applicant submits that he has been off work because of disability since March 2007. The Application has not yet been delivered to the respondent.

2The Application indicates that the date of the last event upon which the Application is based was February 6, 2007, approximately two years and three months before the Application was filed.

3On June 19, 2009, the Tribunal sent the applicant a Notice of Intent to Dismiss. In that Notice, the Tribunal advised the applicant that the Application appeared to be outside of the Tribunal’s jurisdiction because of the delay in filing the Application. The Tribunal directed the applicant to provide his submissions to explain why, in all of the circumstances, the Application was within the Tribunal’s jurisdiction.

4The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed:

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 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.

POSITION OF THE APPLICANT

5The applicant submits that the delay in filing his Application was incurred in good faith. He submits that prior to approximately mid-2008, he did not pursue his rights under the Code because he had been led to believe that his trade union was “taking care of” his issue with the respondent. The applicant submits that he filed a grievance through his trade union on March 23, 2007 which alleged, among other things, that the respondent employer was harassing him on the basis of an ongoing illness by constantly requiring him to provide doctors’ notes to substantiate absences of one or two days’ duration. It was not until after he received a January 28, 2008 letter from his trade union regarding the proposed resolution of his grievance that he noted that the proposed resolution was silent with respect to the alleged harassment. Over the course of the next few months, he tried several times, unsuccessfully, to get in touch with the union representative who was handling his grievance to discuss this concern. Ultimately, he spoke to another union representative who advised him that the person he had been trying to reach had “moved on”. That individual also advised him that the union could not help him with respect to the harassment issue until the applicant returned to work, which was not acceptable to the applicant because he fears that he will be subject to ongoing harassment when he returns to work and wishes to have the issue addressed before then.

6The applicant further submits that his disability also contributed to the delay in filing his Application. The applicant explains that he has seizures, which are exacerbated by stress. He found completing the Application very stressful and at times, for medical reasons, he needed to put the Application aside for a period of time until he was able to review it again. The applicant suggests that he can submit medial evidence from his doctor substantiating that his disability contributed to the delay in filing the Application, if necessary.

DECISION

7As noted above, pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal has no jurisdiction to deal with the Application unless it is satisfied that the delay in filing the Application was incurred in good faith.

8In another context, the Ontario courts have had occasion to interpret the phrase “delay that has been incurred in good faith”. To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

9In this case, the applicant submits that he had no reason to make any inquiries about enforcing his rights under the Code prior to mid-2008, at which time he learned that his trade union was not pursuing his human rights on his behalf, as he had previously thought, given that he had an ongoing grievance on the issue. The applicant further submits that, after he learned that the union was not “taking care of” his harassment issue, disability contributed to the delay in filing his Application. He submits that he acted honestly and pursued his rights under the Code reasonably diligently, in the circumstances.

10In these circumstances, it may be that the delay in filing the Application was incurred in good faith. However, before determining whether or not the delay was incurred in good faith, and also whether substantial prejudice will result to anyone affected by the delay, the respondent must be given an opportunity to make submissions on whether the applicant ought to be permitted to proceed with the application under section 34(2) of the Code.

11Accordingly, the Tribunal will deliver a copy of the Application to the respondent so that it may provide its submissions on whether the delay in filing the application was incurred in good faith and whether substantial prejudice will result to anyone affected by the delay within the meaning of section 34(2).

12The respondent is directed to provide its submissions to the Tribunal and to the applicant within 21 days of the date of this decision. The respondents need not file their full Response to the Application until the Tribunal has determined the delay issue.

13The applicant is directed to submit any medical documentation he may have substantiating that his disability contributed to delay in filing the Application to the Tribunal and to provide a copy to the respondent within 14 days of the date of this decision.