Tesfameskel Tedla v. Emtol Manufacturing Limited, A Division of Linamar Corporation, 2009 HRTO 2082

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tesfameskel Tedla Applicant

-and-

Emtol Manufacturing Limited, A Division of Linamar Corporation Respondent

DECISION

Adjudicator: Mark Hart Date: December 2, 2009 Citation: 2009 HRTO 2082 Indexed as: Tedla v. Emtol Manufacturing

APPEARANCES BY

Tesfameskel Tedla, Applicant ) On his own behalf Emtol Manufacturing Limited, ) Hendrik Nieuwland A Division of Linamar Corporation, ) and Alison Adam, Counsel Respondent )

Decision

1This is an Application dated May 20, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on August 7, 2007.

2A preliminary hearing in this matter took place on November 27, 2009 to determine the issue raised by the respondents that the Application should be dismissed on the basis of delay.

3In keeping with the expeditious manner in which s.53 applications are to be conducted, at the conclusion of the hearing on November 27, 2009, I issued the following oral decision.

1. This is a request by the respondent for dismissal of the Application because of delay.

2. For the reasons set out in my decision in Boncori v. TRW Canada Limited, 2009 HRTO 564, the one year time limit for the filing of an application set out in section 34 of the Code needs to be interpreted in the context of the transition provisions. My view is that the one year period runs from the last incident of alleged discrimination until the date that the underlying complaint was filed with the Commission.

3. In this case, the complaint as filed by the applicant cites February 17, 2001, which was the last day worked, as the last incident. However, in my view the complaint alleges discrimination in relation to the termination of the applicant’s employment, such that the actual last incident is on October 28, 2002.

4. The complaint was filed with the Commission on August 7, 2007, which is almost five years after the last incident of discrimination, far in excess of the one year time limit.

5. The next question for me to consider is whether the delay was incurred in good faith. At a minimum, this requires that the applicant provide some reasonable explanation for the delay. Having heard from the applicant, it is not clear to me precisely when he became aware that he had the ability to file a human rights complaint. On the one hand, he states that he was advised of this sometime after the conclusion of the proceedings under the Workplace Safety and Insurance Act (“WSIA”), which concluded with the release of the Workplace Safety and Insurance Appeal Tribunal (“WSIAT”) decision on January 10, 2007. On the other hand, the applicant states that he thought that he couldn’t file a human rights complaint while the Workplace Safety and Insurance Board (“WSIB”) proceedings were ongoing, which suggests that while the WSIB proceedings were ongoing he was at least aware of his rights under the Code.

6. In either event, whether the applicant was ignorant of his right to file a complaint or whether he was aware of his rights but thought he had to wait until the WSIB proceeding was finished, the applicant does not appear to have taken any steps to inform himself of his rights under the Code, notwithstanding that he was represented by legal counsel in 2002 before the Appeals Resolution Officer and by the Office of the Worker Advisor before the WSIAT during the period from 2005 to 2007. The applicant has stated that during this period he was focused on the WSIB process, and in my view this may explain why he failed to take steps to inform himself of his other rights.

7. That, however, is not a sufficient explanation to justify a five year delay in filing his complaint. The issue under the WSIA was whether the applicant’s injury was work-related, and it was determined that it was not. In contrast, under the Code, there is no issue as to how the injury or disability came about. The simple issue is, if an applicant has a disability, whether the employer took appropriate steps to provide accommodation. That is an entirely different issue which an applicant is entitled to pursue at the same time as pursuing issues under the WSIA.

8. As in the decision in Quimado v. S.A. Armstrong Ltd., 2008 HRTO 110, the applicant has provided no reason as to why he could commence and participate in proceedings under the WSIA, but not also pursue allegations of discrimination under the Code, save and except for his own uninformed belief that he could not do so. In my view, that is not sufficient to establish a good faith justification for the delay.

9. As I have found that the delay was not incurred in good faith, I do not need to consider the issue of whether the respondent experienced prejudice as a result of the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343. However, for the reasons stated in Corrigan, supra at para. 28, I find that it is reasonable to conclude that the respondent would be prejudiced by the five year delay in this case, as the delay prevented it from preserving evidence and compromised its ability to conduct any meaningful investigation into the events at the relevant time. This prejudice is particularly acute in this case given that the corporate respondent ceased operations at the end of 2002.

10. For all of these reasons, the Application is dismissed for delay.

4As a result, the Application is dismissed.