HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mushtaq Mohammad Applicant
-and-
Liverton Hotels International Inc. (o/a Metropolitan Hotel), Henry Wu, Paul Singh, Diego Restrepo, Workers United Ontario Council (Former UNITE HERE Ontario Council), UNITE HERE Local 75, Alexandra Dagg, Paul Clifford and Andrea Bowker Respondents
DECISION
Adjudicator: Mary Truemner Date: October 13, 2009 Citation: 2009 HRTO 1657 Indexed as: Mohammad v. Liverton Hotels International
Background
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 December 23, 2008. The Application sets out a series of events which the applicant alleges constitute discrimination in employment because of race, place of origin, ethnic origin, disability and creed, as well as reprisal.
2The individual respondents to this Application are connected to either the respondent Hotel or the respondent union named in the 2005 Commission complaint and the Board complaint.
3The Application states that the discrimination and harassment began as early as 2003 and continued. The applicant filed a complaint against his employer, the respondent Hotel, with the Human Rights Commission ("the Commission") on May 20, 2005. The Application states that this complaint (the "Commission complaint") was postponed pending the outcome of a proceeding before the Labour Relations Board ("the Board"). The applicant included with this Application a copy of a June 16, 2005 complaint against his employer and his union under s.74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Schedule A, as amended. It was signed by his representative, Macdonald Scott. According to the applicant, the Board instructed the respondent UNITE HERE (the "union") to deal with the problems of harassment and discrimination raised in his grievances, but the union failed to do so.
4According to the Responses to this Application, the matters before the Board included the allegations of discrimination raised by the applicant in his complaint to the Commission. The proceeding before the Board resulted in Minutes of Settlement signed on October 14, 2005, a copy of which was attached to most of the Responses. The Minutes of Settlement required the employer to accommodate the applicant's disability, and resolve disputes through the Workplace Safety and Insurance Board (the "WSIB"). The Minutes also released the union and the employer from possible claims arising out of the facts giving rise to the complaint to the Board. The Board issued an order on October 18, 2005, adjourning the matter sine die for one year, after which time it would be deemed terminated. The Board's order was attached to most of the Responses.
5Also attached to the Responses was a letter dated November 15, 2005, from the Commission to the parties named in the Commission complaint, advising them that this complaint had been closed as withdrawn as per the request of the complainant's representative, Macdonald Scott.
Requests for Early Dismissal
6All the respondents requested that the Application be dismissed pursuant to s. 53(8) of the Code because the complaint filed by the applicant with the Commission was substantially the same as the Application. Some respondents also requested that the Application be dismissed on the basis that it is untimely, that a settlement bars the claim under the Code, and that other proceedings have already dealt appropriately with the substance of the Application (s. 45.1 of the Code).
7In a letter from the Registrar, the Tribunal invited the applicant to respond to the respondents' Requests for Early Dismissal. The applicant filed brief submissions requesting that the Application not be dismissed because the Tribunal does have jurisdiction and because the Application was not filed late.
Decision
8Section 34 of the Code states:
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.
9The applicant suggests that the events underlying his Application occurred after 2005 because he continues to psychologically suffer from the memory of his employer's discriminatory acts, and by his union's continued reluctance to help him. Attached to his submissions are medical materials arising out of dealings with the WSIB. His argument appears to be that his application is not out of time because his worsening psychological state continues, as evidenced by medical documents dated in 2006, 2007, and one in 2008.
10Whether or not the applicant's medical condition during these years was a continuation of symptoms resulting from incidents of discrimination, this does not bring his Application within the one-year limitation period dictated by the Code.
11It is difficult to discern from the Application the time frame of actual incidents alleged to constitute discrimination, but it appears that the discrimination came to a head in 2004-05 when he was allegedly harassed because of creed, ethnic origin and race, and then injured but inadequately accommodated. The applicant appears to allege that the employer continued to fail to adequately accommodate his disability until at least 2007. However, the applicant's submissions do not refer to any incident involving his employer which occurred within one year of filing his Application. Furthermore, the materials that the applicant provided indicate that he was totally disabled for gainful employment by 2007, and that the WSIB took carriage of his wage loss. It does not appear that the applicant attempted to return to work within a year of filing his Application given his status of total disability, and there is no indication that he requested any accommodation from the employer in order to return to work within a year of filing his Application. I find that the applicant has provided no reasonable explanation to explain why this Application was filed more than one year after the last arguable incident of discrimination alleged against his employer.
12With respect to the claim against the union, the applicant alleges that the union discriminated against him by wasting time and not doing its job over the years. The Reply refers to a letter from the union dated December 21, 2007, informing him that the union cannot help him further with respect to his grievances. The letter appears to confirm what had already been expressed to the applicant earlier by union officials. The applicant does not refer to any interaction between himself and the union following this letter.
13It is not clear whether the applicant is alleging that the letter in itself is an independent act of discrimination. Even if it can be treated as the last incident of alleged discrimination, the Application was filed more than a year later. In order to proceed, I must be satisfied that the delay in filing this Application was incurred in good faith. Despite being given the opportunity, the applicant has not provided any explanation for the delay in filing his Application, and I have no basis to conclude that the delay was incurred in good faith.
14I appreciate that if the letter is an alleged act of discrimination, then the Application was filed only two days beyond the one-year time limit. However, the applicant must still provide an explanation of his delay. In any event, I find that the letter cannot be seen as an independent act of alleged discrimination. The applicant had been previously given the same information, and the letter was simply confirmation of the union's position. Furthermore, it is clear that the applicant alleges that the union had not acted properly for years. He has had ample time to pursue his allegations under the Code against the union.
15For the above reasons, I find that the applicant has not satisfied the burden of demonstrating that the delay in filing this Application was "incurred in good faith" as required under s.34(2) of the Code. Consequently, it is not necessary to determine whether the respondents have demonstrated substantial prejudice as a result of the delay, nor is it necessary for me to deal with the other reasons for dismissing the Application as requested by the respondents.
16This Application is dismissed.
Dated at Toronto, this 13th day of October, 2009.
"Signed by"
__________________________________
Mary Truemner Vice-chair