HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stanley Dwyer
Applicant
-and-
Chrysler Canada Inc.
Respondent
DECISION
Adjudicator: David A. Wright
Date: March 5, 2009
Citation: 2009 HRTO 247
Indexed as: Dwyer v. Chrysler Canada
WRITTEN SUBMISSIONS BY
Stanley Dwyer, Applicant ) Harry Kopyto,
) Representative
Chrysler Canada Inc., ) Clifford Hart, Counsel
Respondent )
CAW – Canada, Local 1285, ) Niki Lundquist, Counsel
Proposed Intervenor )
[1] This Application relates to the applicant’s dismissal from employment in 1976, which has been the subject of two complaints to the Ontario Human Rights Commission. In a previous Interim Decision, [2009 HRTO 88](https://www.minicounsel.ca/hrto/2009/88), the Tribunal advised the parties that it would determine, as a preliminary matter, the issue of its jurisdiction to hear the Application. The Tribunal directed the applicant to file submissions regarding (i) the effect of s. 53(8) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which bars applications to the Tribunal where the subject-matter is the same or substantially the same as a complaint that was filed with the Commission except where certain exceptions apply; and (ii) whether the Tribunal should exercise its discretion under s. 34(2) to accept this Application beyond the one-year time limit.
[2] In the applicant’s written submissions, he argues that this Application does not involve the same or substantially the same facts as the earlier complaints in light of the alleged discovery of new evidence that he says could result in a different conclusion. He also argues that if s. 53(8) denies the applicant a hearing, it violates s. 7 of the Canadian Charter of Rights and Freedoms and asks that the Tribunal delay its decision to give the applicant the opportunity to deliver a Notice of Constitutional Question. The applicant’s written submissions confirm that “there are no additional submissions that we are able to make” on the issue of delay.
[3] In view of the determination I have reached on the issue of delay, it is unnecessary to address the application of s. 53(8). For the reasons that follow, this Application is outside the Tribunal’s jurisdiction as it was filed more than one year following the date of the incident to which it relates, and it would not be appropriate for the Tribunal to allow this late Application pursuant to s. 34(2).
[4] Section 34 of the Code reads as follows:
- (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.
[5] The applicant was dismissed in 1976. He explains the delay as follows:
Although the impugned conduct took place some time ago, I have actively engaged in efforts to obtain new and cogent evidence since that time in order to substantiate this complaint and in order to seek relief for the manner in which I was terminated from my employment. This fresh evidence that I am relying on includes evidence from the WSIB as well as from the WSIAT which was not available at the time of my original complaint and which clearly substantiates the sufficiency of the reasons for my absence from work at the relevant time.
Further, I am in possession of several medical reports which suggest that, at all relevant times, I was suffering from symptoms of anxiety and depression having in fact been diagnosed as having a chronic major depressive disorder with anxiety and post-traumatic features. The symptoms of this illness have made it difficult if not impossible for me to pursue a remedy for the manner in which the Respondent treated me when it fired me until the present time. However, not withstanding that fact, I have made efforts from time to time when I have been able to do so to keep my complaint alive.
He also alleges that he attempted to obtain a copy of the file from his previous complaints to the Commission, and was unable to do so, nor was the Commission willing to reconsider its previous decision.
[6] Under s. 34(2), to extend the time limit, the Tribunal must be satisfied both that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. In Quimado v. S.A. Armstrong, [2008 HRTO 110](https://www.minicounsel.ca/hrto/2008/110), the Tribunal stated as follows: “At a minimum, the Tribunal requires a reasonable explanation why an applicant did not pursue his or her rights under the Code in a timely manner.”
[7] As regards the new evidence, the applicant has not provided a reasonable explanation why the alleged new evidence was not and could not have been obtained until more than 30 years after the alleged events. The mere statement that “new evidence” is available does not provide a valid justification for delay that establishes good faith.
[8] Similarly, the mere statement that the applicant had a disability that made it difficult to pursue the complaint does not justify a waiver of the time limit. The applicant has not provided a reasonable explanation of why his disabilities made it possible to pursue numerous other legal remedies over the years (see para. 2 of the previous Interim Decision) but he could not raise his Code rights in a timely manner: Quimado at paras. 15 – 19.
[9] Finally, substantial prejudice to the respondent can be inferred from a delay of over 30 years, when the respondent has had to engage in litigation of the issues on several occasions. In doing so, I make no determination about whether or when prejudice could be inferred in circumstances different from the unique and extreme delay that has occurred in this case.
ORDER
[10] The Application is dismissed.
Dated at Toronto, this 5th day of March, 2009.
“Signed by”
David A. Wright
Vice-chair