HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Debbie Johnson
Applicant
-and-
Toronto Community Housing Corporation
Respondent
DECISION
Adjudicator: Kathleen Martin
Indexed as: Johnson v. Toronto Community Housing Corporation
Written Submissions by
Debbie Johnson ) Glen Morrison
Applicant ) Representative of the Applicant
Toronto Community Housing ) William M. LeMay
Corporation, Respondent ) Representative of the Respondent
1This is an Application alleging discrimination in employment on the basis of disability, race, colour, ethnic origin and place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application was filed on February 18, 2009.
2On August 28, 2009, the Tribunal issued an Interim Decision seeking submissions on whether the Application should be dismissed because it was filed beyond the timelines in the Code. For reasons that follow, I have determined that this Application should be dismissed for delay.
BACKGROUND
3The Application arises out of the applicant’s employment with the respondent. Specifically, the applicant alleges that she was discriminated against on the above-noted grounds when the respondent investigated and subsequently terminated her for alleged misconduct. The Application indicates that the last event occurred on September 28, 2007 (the date of termination) and explains that she is applying more than one year from the last event because “…the incidents and/or events have not ceased”.
4The applicant’s union also filed a grievance regarding her termination. That grievance was referred to arbitration and a hearing commenced on April 22, 2008. While initially the parties appeared to have engaged in mediation, the hearing into the merits of the grievance commenced July 29, 2008. The hearing is ongoing.
5On June 8, 2009, the respondent filed a Request for Order During Proceeding (“Request”) and a Response to the Application. The Request asked that the Application be dismissed on a number of grounds including delay or, in the alternative, deferred pending the completion of the arbitration hearing.
6On July 29, 2009, the applicant filed her Reply and submissions regarding the respondents’ request to defer. The applicant did not respond to the outstanding Request that the Application be dismissed on the basis of delay.
7On August 28, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 137, directing the applicant to provide written submissions addressing the respondent’s Request that the Application be dismissed for delay and providing the respondent with an opportunity to reply to those submissions.
8Submissions have been received from the applicant and the respondent. Neither party has requested an opportunity to make oral submissions and I am satisfied that the issue can be determined based on the submissions made.
DECISION
9Section 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.
10While the applicant argued that the incidents/events have not ceased, thus implying that the Application falls under section 34(1)(b), no particulars of any allegations about the conduct of the respondent since the date of termination have been provided. Accordingly, I find that the Application has been filed beyond the one year period and in the circumstances, the applicant may only proceed 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.
[11] In Miller v. Prudential Lifestyles Real Estate, [2009 HRTO 1241](https://www.minicounsel.ca/hrto/2009/1241) at paras. [24-25](https://www.minicounsel.ca/hrto/2009/1241), the Tribunal considered what an applicant must show to establish good faith. The Tribunal stated:
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.
12In the present case, the applicant argues that her Application was filed in good faith because she had complained to her union about the alleged harassment and discrimination. The applicant states that she fully expected the union to take steps to redress her human rights and therefore she had no reason to make inquires about those rights. According to the applicant she only found out during her grievance hearing that her human rights allegations were not addressed.
13I have considered the applicant’s submissions, but am not satisfied that the applicant’s delay was incurred in good faith. The applicant’s employment was terminated on September 28, 2007. While the applicant submits that she complained to her union, the submissions provided are sparse at best. The applicant does not set out when she complained and what information was provided to her at that time such that she had no reason to make other inquiries.
14Further, even accepting that she complained to the union about the alleged discrimination, the applicant has not explained why no Application was filed until February 18, 2009. As the respondent has argued, the applicant would have known by July 29, 2008 when opening statements were made in the arbitration hearing that the union was not advancing any claims of discrimination. Notwithstanding this fact, the applicant took no steps to file her Application for approximately another 7 months. The applicant did not dispute these submissions, nor did she provide any explanation for her further delay. In the circumstances, I do not find that the delay was incurred in good faith.
[15] Having made this decision, it is not necessary for me to consider whether there would be any substantial prejudice to any person affected by the delay.
16The Application is therefore dismissed.
Dated at Toronto, this 17th day of November, 2009.
“Signed By”
Kathleen Martin
Vice-chair