Taylor v. CUPE Local 148, 2009 HRTO 1572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stella Taylor

Applicant

• and-

CUPE Local 148, CUPE National, and Cora-Lee Skanes

Respondents

DECISION

Adjudicator: David A. Wright

Date: September 29, 2009

Citation: 2009 HRTO 1572

Indexed as: Taylor v. CUPE Local 148

1[1] This is an Application filed on July 14 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of disability and reprisal. It relates to the applicant’s termination from employment with the City of Sudbury (“City”) in February, 2003, the allegation that she was denied accommodation of her disability, and allegations about the City’s actions regarding subsequent employment application. The applicant alleges that the respondent union (the “union”) is liable for discrimination as a result of the City’s actions.

2The applicant previously filed a Complaint against the City of Sudbury with the Ontario Human Rights Commission regarding these matters, which was settled. She also filed a Duty of Fair Representation Application against the union with the Ontario Labour Relations Board which, it appears, was also settled.

3Sections 34(1) and (2) of the Code read as follows:

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.

4On her Application form, when asked to explain why she was applying more than one year from the last event, the applicant focused upon the fact that she had no support from a lawyer and could have been liable for fees.

5On September 11, 2009, the Tribunal issued a Notice of Intent to Dismiss noting the delay and inviting the applicant to make submissions on the issue. The applicant filed detailed submissions, which focus on the manner in which she alleges she was unjustly treated and what she sees as the strengths of her Application, the fact that she felt she was “between a rock and a hard place” in dealing with the City, and the difficulties she has had in obtaining new employment, for which she alleges the City is responsible.

6As the Application was filed with the Tribunal more than one year after the last event, the applicant must demonstrate that the delay was incurred in good faith in order to proceed with her Application. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal held as follows:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). 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. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The applicant’s difficulties in obtaining legal representation or the feelings that the Application would be difficult do not establish good faith within the meaning of the Code. The applicant was able to commence other legal proceedings about these matters: she filed a human rights complaint against the City (but did not name the union) and filed a Duty of Fair Representation Application against the union. She did not act with due diligence in pursuing this human rights Application. Accordingly, I find that the applicant has not shown that the delay in filing the Application was incurred in good faith, as is required.

8The Application is therefore dismissed.