Jeffery v. Oxford (County), 2010 HRTO 1048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deb Jeffery

Applicant

-and-

County of Oxford (Woodingford Lodge)

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: May 11, 2010

Citation: 2010 HRTO 1048

Indexed as: Jeffery v. Oxford (County)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination in the context of employment on the basis of disability.

2On March 11, 2011, the Tribunal administratively issued a Notice of Intent to Defer (“Notice”) the Application because of an ongoing grievance proceeding. The Tribunal invited submissions from the parties and the applicant’s union, the National Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local 636 (“Union”) on the deferral issue.

3The respondent filed submissions in response to the Notice. It states that the substance of the Application is being dealt with in an ongoing grievance arbitration. However, it takes the position that rather than be deferred, the Application should be dismissed pursuant to section 34 of the Code because it was filed more than one year after the last alleged incident of discrimination.

4The applicant filed submissions objecting to the dismissal of the Application. She does not appear to take a position on the deferral issue.

5The Union takes no position on the deferral issue. It has not made any submissions in regards to the timeliness issue.

TIMELINESS

6In the Application, filed December 4, 2009, the applicant states that the last incident of discrimination (the termination of her employment) occurred on July 10, 2008. She acknowledges that the Application was filed more than one year after the last incident of alleged discrimination.

7Section 34 of the Code states:

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.

8Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

9The applicant explains that the delay in filing the Application arose because:

a. she did not realize that she could apply to the Tribunal until after the arbitration case was finalized; and

b. she was not aware of the one year limitation period.

10In addition, the applicant has expressed concerns about the arbitrator’s decision requiring her to produce documents. She feels the arbitrator rendered a decision without proper consideration for the facts of the case and that, unless she is permitted to pursue her case before the Tribunal, she will never have access to a fair process.

11In determining the issue of good faith, the Tribunal held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will not generally be a valid explanation for delay in filing an Application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. It was certainly open to the applicant to file a timely Application under the Code while she pursued his rights before the arbitrator. Indeed, in her submissions in response to the Notice, it appears that the applicant was considering filing an application by at least August of 2009 and was seeking advice from the Union in that regard.

12In the circumstances, I am not satisfied that the applicant’s failure to inquire into the limitation period under the Code constitutes a good faith reason for the delay.

13In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart, (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3d) 419 (Ont. U.F.C.), cited in Scherer v. Scherer, 2002 CanLII 44920 (ON C.A.), (2002) 59 O.R. (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).

14The applicant has not satisfied me that the delay in filing the Application meets the definition of “good faith” according to the Tribunal’s jurisprudence.

15I understand that the applicant has concerns about the ongoing grievance process. However, the existence of those concerns does give the Tribunal jurisdiction over a matter which does not meet the requirements of section 34 of the Code.

16The Application is dismissed pursuant to section 34 of the Code.