HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashok Kumar

Applicant

-and-

Unilever Canada Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 18, 2010

Citation: 2010 HRTO 1113

Indexed as: Kumar v. Unilever Canada

WRITTEN SUBMISSIONS BY

Ashok Kumar, Applicant ) On his own behalf

Unilever Canada Inc., Respondent ) Steve Dryburgh, Representative

International Brotherhood of Teamsters, ) Martin Cerqua, Representative

Local 647, Affected Organization )

[1] The purpose of this Decision is to decide whether the Application should be dismissed because it was not filed with the Tribunal within the one-year statutory deadline.

[2] The applicant was a lift truck operator in the respondent’s plant. He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on December 16, 2009, which alleged that the respondent harassed and discriminated against him with respect to employment because of his ethnic origin and creed, and subjected him to reprisal.

[3] Specifically, he alleged that a shift supervisor, who is a Pakistani Muslim, harassed and threatened to fire him because he is an Indian Hindu. He alleged that on July 16, 2008 the front wheel of a lift truck that he was driving collapsed into a sewer hole, which put him in a state of shock, but instead of helping him, the shift supervisor shouted at and told him to go home. He further alleged that this treatment was a reprisal because the respondent was reducing its workforce by finding any excuse to dismiss employees.

[4] In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “16 – July 2008”. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), he wrote: “N/A”.

[5] On February 3, 2010, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss, which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

[6] The applicant filed written submissions on February 10, 2010, which stated that the delay in filing his Application was not intentional, and was caused by his union, International Brotherhood of Teamsters, Local 647, which was representing him in a grievance. He stated that he had to wait for the results of the third stage of the grievance process from his union and the respondent.

[7] In an Interim Decision, [2010 HRTO 443](https://www.minicounsel.ca/hrto/2010/443), the Tribunal requested written submissions from the respondent, the union and the applicant on the nature of the grievance, and the effect, if any, that the status of the grievance had in delaying the filing of the human rights Application.

[8] The respondent filed written submissions on March 10, 2010, which stated that the applicant filed a grievance about alleged harassment relating to the incident on July 16, 2008. The respondent stated that it responded to the grievance, and the third and final stage of the grievance process occurred on November 12, 2008. The respondent stated that it did not hear anything further from the applicant or the union after that date, and therefore assumed that the grievance had been resolved.

[9] The union also filed written submissions on March 10, 2010, which stated that the third stage of the grievance process was completed in mid to late 2008, and there has been no activity on the file since then. The union stated that it investigated the applicant’s allegations in his grievance, and found no evidence of harassment, discrimination or reprisal. The union stated that the respondent’s last settlement offer to the applicant was on February 25, 2009, but was related to a different grievance that the applicant had filed.

[10] The applicant filed written submissions in reply on March 19, 2010, which stated that the respondent and the union collaborated to try to force him to sign an agreement to resolve all matters and withdraw the grievances. He attached a letter from him to his union dated February 24, 2009, which stated that the union had initially agreed to take his grievance to arbitration, but was now trying to force him to sign a settlement. The letter requested clarification from the union as to whether it would be taking his grievance any further.

[11] The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

[12] In Miller v. Prudential Lifestyles Real Estate, [2009 HRTO 1241](https://www.minicounsel.ca/hrto/2009/1241), the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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.

[13] The Tribunal has also addressed a situation where an applicant delayed filing her human rights Application because she was waiting for grievance/arbitration proceedings to conclude. In Cartier v. Northeast Mental Health Centre, [2009 HRTO 1670](https://www.minicounsel.ca/hrto/2009/1670), the Tribunal stated at para. 23:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the [Ontario Labour Relations Board] and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. [Emphasis added]

[14] I am not satisfied that the applicant’s five-month delay in filing his Application with the Tribunal was incurred in good faith. In my view, the applicant could have filed a timely Application with the Tribunal while continuing to pursue his grievance. Furthermore, it was not reasonable for the applicant to wait beyond the one-year statutory deadline for a satisfactory response from the union as to whether or not they would be taking his grievance any further. The applicant knew as early as February 24, 2009, when he sent his union a letter, that the union may not be taking his grievance any further. The one-year statutory deadline for filing his Application was July 15, 2009 – nearly five months later. In the absence of a satisfactory response from his union, he could have filed his Application on or before that date.

[15] In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

[16] The Application is dismissed.

Dated at Toronto, this 18^th^ day of May, 2010.

“signed by”

Ken Bhattacharjee

Vice-chair