Brenda Farwell v. Northumberland Services for Women, 2010 HRTO 1126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Farwell

Applicant

-and-

Northumberland Services for Women

Respondent

DECISION

Adjudicator: Eric Whist

Date: May 19, 2010

Citation: 2010 HRTO 1126

Indexed as: Farwell v. Northumberland Services for Women

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on February 11, 2010. The applicant alleges that she was discriminated in respect of employment on the basis of disability.

2On March 31, 2010 the Tribunal sent a Notice of Intent to Dismiss (the “Notice”) to the applicant stating that it appeared that the Tribunal may not have jurisdiction to process her Application because it was filed more than one year after the last incident of discrimination described in the Application and the applicant had not explained why the delay in filing was incurred in good faith and why the delay would not cause substantial prejudice to any person affected by the delay.

3The Notice directed the applicant to provide submissions within 30 days on why the Application would be within the Tribunal’s jurisdiction given the delay in filing. The applicant has not provided submissions in response to the Notice and the time permitted for responding has elapsed.

Background

4The Application provides an account of the applicant’s employment with the respondent focusing on the difficulties she allegedly had with respondent during the period of June 2007 to January 2008 at which time the applicant became ill and went on an extended leave from her employment. The Application then details the interactions the applicant had with the respondent and the respondent’s disability carrier while the applicant was on leave including her efforts to receive short term and long term disability benefits and her involvement in a Return to Work plan. The Application states that on February 9, 2009 the applicant received a termination notice from the respondent citing “job abandonment”. The Application identifies no further dealings the applicant had with the respondent.

Decision

5Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

6I find that the last incident of alleged discrimination by the respondent cited in the Application is February 9, 2010, the date the applicant received her notice of termination. Accordingly, the Application, filed over one year later on February 11, 2010 does not meet the requirements of section 34(1).

7Although the Application is filed only a few days after the one year deadline the applicant must nevertheless establish that the delay was incurred in good faith. The Tribunal has no authority to accept even brief delays beyond 12 months, unless good faith has been established. This is because the Tribunal’s power to hear and determine human rights applications is based on the Code and the Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith.

8As noted the applicant did not provide any submissions in response to the Tribunal’s Notice. However, the applicant did provide a brief explanation for the delay in her response in her Application. In response to Question 7(d) on the Application which asks “If you are applying more than one year from the last event please explain why” the applicant states “illness and computer difficulties”.

9I have considered this explanation absent any further submissions from the applicant. However, the brief reference to illness and computer difficulties does not sufficiently explain why the applicant was not able to act in a more timely fashion and file her Application within the required one year time frame.

10In 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. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. 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 seek to pursue a human rights claim. I find, based on the information before the Tribunal, that the applicant has not demonstrated why she could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code.

11The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Consequently, the Application is dismissed.