Paul Boyer v. Sears Canada Inc., 2009 HRTO 625

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Boyer

Applicant

-and-

Sears Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 13, 2009

Citation: 2009 HRTO 625

Indexed as: Boyer v. Sears Canada

1This is an Application filed on November 15, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) in which the applicant alleges that his employer violated his right to equal treatment with respect to employment without discrimination because of age.

BACKGROUND

2The respondent provides benefits to eligible employees upon retirement. These include health, insurance and dental benefits set out in the respondent’s Health and Benefit Plan (“Plan”).

3In order to be eligible to receive such benefits, employees must meet the Plan’s eligibility criteria and must:

a. have been hired before January 1, 2001;

b. be at least 55 years of age; and

c. have a minimum of 20 years of full-time continuous service.

4On February 5, 2007, the respondent’s Board of Directors adopted a resolution amending the Plan. As of January 1, 2009, employees are eligible for benefits only if they have achieved all of the Plan’s eligibility criteria by December 31, 2008. The Respondent states that it provided written notice of the amendments to all of its employees on February 7, 2007.

5The applicant states that, by December 31, 2008, he met criteria (a) and (c), but that he had not reached 55 years of age. He will turn 55 on August 26, 2009.

REQUEST FOR EARLY DISMISSAL

6The respondent requests an early dismissal of the matter. It argues that the one-year time limitation set out at s.34(1)(a) of the Code runs from February 7, 2007, the date the amendments to the Plan were announced to employees. On this basis, the respondent contends that the Application, which was filed on November 15, 2008, falls outside the limitation period.

7In my view, it is appropriate to determine the respondent’s Request for an early dismissal of the Application as a preliminary matter. Section 34 of the Code states:

(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.

8Section 34 of the Code requires applications to the Tribunal to be made within one year of the last incident of alleged discrimination unless the applicant can show the delay was incurred in good faith and there will be no substantial prejudice to any respondent.

9Accordingly, the Registrar will schedule a hearing by telephone conference call to address the following issues:

a. Was the Application filed within one year of the incidents to which the Application relates?

b. If the Application was filed after the expiry of that time limit, was the delay incurred in good faith and will substantial prejudice result to any person affected by the delay?

10If either the applicant or respondent wishes to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, it must deliver such additional material to the other party and file it with the Registrar no later than two weeks before the date of the conference call.

11I am not seized of this matter.