HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret Lafleur

Applicant

-and-

Kimberley Scott

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: July 24, 2009

Citation: 2009 HRTO 1141

Indexed as: Lafleur v. Kimberley Scott

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 June 17, 2009, alleging that the respondent discriminated against her in respect of employment on the grounds of disability, sex and age. 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 January 30, 2007, the date on which the respondent terminated the applicant’s employment. The Application was filed almost two years and five months after that date.

3On July 16, 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 submissions explaining 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 her Application was incurred in good faith. She submits that she contacted the “Labour Board” to inquire about her rights “right away” after the last incident of discrimination on January 30, 2007, but was not advised by them to contact “Human Rights”. It was not until August 2008, after telling a friend her story, that her friend suggested that the applicant had a human rights case. Her friend contacted his lawyer who then contacted “Human Rights”, apparently on her behalf, in August 2008. She claims that in June 2009 someone, it is not clear who, contacted her to follow up the August 2008 contact with “Human Rights”.

6The applicant submitted a letter she wrote to the respondent dated November 26, 2008 in which she claimed that she had been wrongfully laid-off on January 30, 2007 and directing the respondent to contact her lawyer. The applicant also submitted a letter which she indicates that she sent to news media some time after she apparently learned in August 2008 that she might have a human rights case. Both letters claimed that the applicant had been wrongfully terminated. Neither claimed that her human rights had been violated. In her letter to the news media, the applicant claimed that she had been wrongfully dismissed because she had accused the respondent of financial improprieties.

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).

9The applicant submits that, immediately following her termination, she felt that the respondent’s treatment of her had been unfair. However, she did not make sufficient inquiries to ascertain her rights in a timely manner. She did contact the “Labour Board”, which did not advise her to contact Human Rights. This is not surprising since it is not the Labour Board’s role to provide advice to members of the public about their legal rights. The applicant did not seek legal advice about her rights.

10The thrust of the applicant’s submissions is that she was ignorant of her rights until a casual conversation with a friend in August 2008 yielded advice from her friend and/or her friend’s lawyer that she had a human rights case. At that point, it was already more than 18 months after the last event upon which the Application is based. The applicant could have filed an Application with the Tribunal at that point. However she did not do so.

11With nothing more, mere ignorance of one’s rights will rarely suffice to establish that delay was incurred in good faith, particularly where the delay has been significant, as is the case here. To establish good faith, the applicant must establish that it was reasonable for her not to make enquiries about her rights during the period in question. The applicant felt that the termination of her employment was unfair at the time it happened. It was not reasonable for her not to make any inquiries about her rights other than contacting the Labour Board. I am not satisfied that the period of delay to August 2008 was incurred in good faith.

12Moreover, even if I were satisfied that the delay to August 2008 was incurred in good faith, the applicant delayed a further 10 months from that point before pursuing her rights under the Code. The applicant did not provide a reasonable explanation why she delayed a further 10 months after she became aware of her rights before filing an Application. She suggests that a lawyer “contacted” someone about her human rights case in August 2008 but she does not assert a belief that steps had been taken to pursue or protect those rights at that time. After being apprised of her rights in August 2008, she did not take any steps to follow up on the August 2008 “contact” that had allegedly been made on her behalf; or to ensure that her rights were being pursued.

13In these circumstances, I am not satisfied that the delay in filing the Application was incurred in good faith. Accordingly, pursuant to section 34(2) of the Code, the applicant may not apply to the Tribunal. The Application is therefore dismissed.