HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vinay Vaya

Applicant

-and-

Apache Burgers and Anne Bicci

Respondents

DECISION

Adjudicator: Mary Truemner

Date: June 8, 2010

Citation: 2010 HRTO 1289

Indexed as: Vaya v. Apache Burgers

BACKGROUND

1The applicant filed an Application dated April 16, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges reprisal and discrimination in employment because of race and colour.

2The Application does not provide the date of the last event of alleged discrimination, but indicates that the applicant’s last day of employment with the respondents was January 15, 2008, approximately 15 months prior to the filing of the Application. In his Application, the applicant appears to acknowledge that it was filed more than one year after the last incident of discrimination. The Application indicates that the reason for the delay is that the applicant did not know how to contact the Human Rights Tribunal. It indicates that it was only after consulting with a lawyer friend that the applicant decided to complain about his treatment.

REQUEST TO DISMISS FOR DELAY

3The respondents filed a Request for Order During Proceedings to dismiss the Application because it was filed more than one year after the allegedly discriminatory incidents, incidents which could not have taken place after the applicant left his employment. The respondents allege that the applicant quit his employment with them on January 14, 2008, also approximately 15 months prior to the filing of the Application.

4The respondents argue that the applicant has not provided a reasonable explanation for the delay in filing the Application. The respondents argue that the applicant has demonstrated considerable knowledge and familiarity with the administrative justice system, as evidenced by his participation in proceedings under the Employment Standards Act pursuant to which he filed an application within two weeks of quitting his employment, and his subsequent appeal to the Ontario Labour Relations Board which has recently been dismissed.

5The respondents also argue that the delay has caused them undue prejudice. They argue that the applicant did not file a complete Application, and did not comply with directions from the Tribunal to complete the Application in a timely way, so that their receipt of the document on February 2, 2009 was almost two years after the events in question. The personal respondent and her husband operate the business, a small family restaurant, and they have a high turnover of staff. They argue that it will be extremely difficult to produce witnesses who were present two years ago during the brief time that the applicant worked at the restaurant.

6The applicant did not provide any submissions to the Request to dismiss.

DECISION

7Section 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.

8The Application describes incidents which occurred while he was employed by the corporate respondent. I therefore find that the date of the last incident of alleged discrimination is January 15, 2008.

9The 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 he was ignorant of how to enforce his rights with the Tribunal.

[10] 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).

11The applicant provided no reason as to why he was unable to inquire about his rights, and seek help from his friend or any legal service 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 unnecessary for me to consider the respondent’s arguments of prejudice.

12This Application is dismissed.