Ilias Alexandris v. Coca-Cola Bottling Company, 2009 HRTO 1374

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ilias Alexandris

Applicant

-and-

Coca-Cola Bottling Company

Respondent

DECISION

Adjudicator: Judith Keene

Date: September 1, 2009

Citation: 2009 HRTO 1374

Indexed as: Alexandris v. Coca-Cola Bottling

Appearances by

Ilias Alexandris ) Nick Alexandris

Coca-Cold Bottling Company ) Lia Chiarotto, Counsel

1In this Application, filed on October 17, 2008, the applicant alleges discrimination in employment on the basis of disability. The facts relied on by the applicant are an alleged “unlawful” layoff in 1994 that resulted in a reduction in the applicant’s pension entitlement.

2The respondent requested that the Application be dismissed because of delay. The respondent also asked for early dismissal of the Application on the basis of a signed release.

3The Tribunal issued an Interim Decision, 2009 HRTO 524 referring the parties to section 34 of the Code, and scheduling a teleconference to hear submissions on the issue of whether the Tribunal should dismiss the Application as a result of the applicant’s having signed a release and/or delay. The teleconference was held on July 28, 2009. I heard submissions from both parties. I have concluded that the Application is barred by s. 34 of the Code.

4Section 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 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.

5In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal set out in paragraph 8 some considerations, taken from legal contexts other than human rights proceedings, that can go into deciding whether a delay was 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).

6As noted in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously, and the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay. “However, the Tribunal also recognises that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).” (Miller, at paragraph 25). Clearly, some of the personal characteristics and circumstances set out as grounds of discrimination under the Code can themselves have an impact on the ability to take prompt or sustained action to achieve a legal remedy.

7In this case, the applicant’s lack of facility with English appears to have significantly hampered his ability to understand his legal situation arising from the restructuring of the firm for which he worked, and his ability to pursue any rights he had under the Code. In the circumstances of this Application, I have no reason to conclude that the delay in this matter was incurred other than in good faith. However, that does not conclude the inquiry; I must also consider the question of prejudice to the respondent. In this case, I conclude that there is actual harm to the respondent’s ability to defend its position.

8The respondent gives a detailed chronology in regard to its purchase and restructuring of the firm for which the applicant worked until 1986. It states that when it ceased to operate the original employer as a separate corporation, in 1994, it undertook a restructuring, which involved terminating the employment of numerous employees in various departments, some of whom, including the applicant, were hired back in 1995. As part of the restructuring, there was a partial windup of the firm’s pension fund, and the applicant exercised one of his options in regard to that fund.

9In claiming prejudice, the respondent states that most documents relating to the reasons for the 1994 layoff, and identifying the individuals affected, no longer exist. The purchase and restructuring pre-dated the modern practice of maintaining comprehensive electronic records. The respondent obtained boxes of documents from off-site storage to attempt to find relevant paperwork.

10The respondent states that most of the management employees involved in the layoff are no longer employed with the respondent. The one management person identified by the applicant, Bill Huffman, left the company thirteen years ago and could not be reached at the last address the respondent had for him. The respondent tried to locate, but was unable to do so.

11The Application does not identify other individuals whom the applicant alleges promised that he and other affected employees would be “given back their seniority”, or an individual who allegedly told him that he “could not perform his job”, nor could the applicant assist the respondent in this regard in the course of the teleconference. The respondent has been unable to determine the identity of anyone who could be a relevant witness in this matter. I agree that even if it could do so, a witness’s recollection would be significantly compromised after this passage of time.

12The Tribunal concludes that the respondent has established substantial prejudice for the purpose of s. 34(2). In view of this, I will not deal with the issue of the release. The Application is dismissed.