HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jamal Waithe

Applicant

-and-

Brofort Inc. and Mark Goldsmith

Respondent

DECISION

Adjudicator: Mary Truemner

Date: June 2, 2010

Citation: 2010 HRTO 1254

Indexed as: Waithe v. Brofort

BACKGROUND

1The applicant filed an Application dated January 26, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination in employment on the basis of race, colour and ancestry.

2The Application indicates that the date of the last event of alleged discrimination was in June 2008, approximately 19 months prior to the filing of the Application. The Application indicates that the reason for the filing more than a year after the discrimination is that the applicant recently found out that the Tribunal existed.

3On March 11, 2010, the Tribunal sent the applicant a Notice of Intent to Dismiss. The Notice stated that it appears the Application is outside the Tribunal’s jurisdiction because:

…the Application was filed more than one year after the last incident of discrimination described in your Application and you have not explained how the delay was incurred in good faith and why you believe no substantial prejudice will result to any person affected by the delay [s.34(1)].

4The Notice directed the applicant to provide written submissions in response by March 11, 2010.

5The applicant has not provided any submissions in response to the Notice of Intent to Dismiss.

DECISION

6Section 34 of the Code 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.

7The Application was not filed within one year of the date of the last alleged incident of discrimination, and I therefore must determine whether the delay in filing this Application was incurred in good faith. The only reason that the applicant has provided which might constitute an explanation for the delay is the fact that the applicant was not aware of the Tribunal.

[8] 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)](https://www.minicounsel.ca/scj/1994/7454), [1994] OJ No. 2975 (Ct. J. (Gen. Div.) cited in Scherer v Scherer [2002 CanLII 44920 (ON C.A.)](https://www.minicounsel.ca/oca/2002/44920). See also Lafleur v. Kimberley Scott, [2009 HRTO 1141](https://www.minicounsel.ca/hrto/2009/1141).

9In the circumstances of this case, while the applicant has referred to only recently becoming aware of the Tribunal, the applicant has not provided any explanation as to why inquiries were not made earlier. I therefore find that the applicant has not satisfied the burden of demonstrating that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code. As a result, it is not necessary for me to make a determination as to whether the delay results in substantial prejudice to any person affected by the delay.

10This Application is dismissed.