McKay v. Villa Forum, 2010 HRTO 1409

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronica McKay

Applicant

-and-

Villa Forum

Respondent

DECISION

Adjudicator: Alison Renton

Date: June 23, 2010

Citation: 2010 HRTO 1409

Indexed as: McKay v. Villa Forum

1This is an Application alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). The Application was filed on February 25, 2009.

2The respondent filed a Response in which it submits that the Tribunal dismiss the Application because another proceeding, a grievance arbitration proceeding, has appropriately dealt with the substance of the Application. The respondent also filed a Request for Order During Proceedings ("RFOP") in which it requests that the Tribunal dismiss the Application as being filed outside of the one-year limitation period set out in section 34 of the Code, referred to excerpts from a number of Tribunal decisions in which an application has been dismissed as being untimely and provided copies of the decisions to which it referred.

3The applicant has filed a Response to the RFOP and reiterates the applicant's position that she believes she was terminated because of her disabilities that required accommodation. The Response to the RFOP does not specifically address the issue of delay.

Background

4The Application arises out of the applicant's employment with the respondent. The applicant alleges that she was discriminated against when the employer refused to accommodate her disabilities and terminated her employment. She attended the termination meeting with a union representative. The Application indicates that the last event occurred on October 31, 2007 (the date of termination) and explains that she is applying more than one year from the last event "Because the issue is ongoing".

5In her Application, the applicant describes that for the next 4 months following her termination she attempted to contact a union representative. She alleges:

....her calls were all ignored, her messages were not returned, she felt abandoned by her union which failed to accept or file a grievance on her behalf, therefore, she has been without the assistance of the union...throughout this ordeal.

6She alleges that the actions of the respondent, aided and abetted by her union, constitute discrimination on the basis of disability and a failure to accommodate her short of undue hardship as required by the Code. She did not name her union as a respondent.

7In the Response, amongst responding to the merits of the Application, the respondent requested the Tribunal dismiss the Application because of a grievance settlement. The respondent submitted that the applicant's union filed a grievance on her behalf requesting reinstatement to her former position with a "recognition of violating her Rights under the Human Rights Code". On May 9, 2008 ("the May meeting"), at a meeting between the respondent and the union, the grievance was settled by the union on the applicant's behalf.

8The applicant filed some submissions in response to the respondent's Request to dismiss because of the grievance settlement. The applicant submits that the remedy that she received as part of the grievance settlement did not address her claims of discrimination and harassment. She further claims that she did not attend the May meeting. She submits that the substance of her Application was not considered or dealt with by another proceeding, that being the grievance settlement.

9As set out in paras. 5 and 6 in her Response to the RFOP, the applicant did not specifically address the issue of delay in filing her Application. However, she submitted, through her representative:

Ms. McKay alleges that the respondent's actions in refusing to accommodate her disability to the point of undue hardship is contrary to the provision of the Human Rights Code, constitutes timely and continuing contraventions and violates her rights to equal treatment in employment because of disability. She asserts that she is still off work, unable to find employment or efforts to accommodate her are non existent [sic].

The applicant further respectfully submits that, there will not be prejudice against any other party except herself if this matter is dismissed. And that the broader public interest in the elimination of discrimination and harassment against disabled Ontarians support a decision to deal with this complaint.

Delay in Filing the Application

10Section 34 of the Code provides:

(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.

11The 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. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to "condone" delay where it is not satisfied that it was incurred in good faith.

12In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. 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). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

13In this case, the applicant submits that "the issue is ongoing". I find that the issues in her Application are not ongoing. In the facts of this case as submitted by the respondent, a grievance was filed on her behalf by her union which resulted in a resolution, on the applicant's behalf, by May 2008. While the applicant may not agree with the terms of that resolution, and may have experienced difficulties in having her union represent her in her termination, there are no facts set out in the Application itself that allege harassment or discrimination beyond the termination date of October 31, 2007 and no other reasons put forward by the applicant to explain why she delayed for almost 16 months in filing her Application. Further, efforts to pursue one's rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508 and Miller, supra.

14There is no information or evidence before the Tribunal that the applicant was impacted by the alleged discrimination such that she was unable to proceed with filing a human rights application, a factor the Tribunal considered in other cases. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 and Kyereme v. Windsor Police Service, 2009 HRTO 1850.

15Having carefully considering this matter, I find that the applicant has not established that the delay in filing her Application was incurred in good faith as required by section 34(2) of the Code.

16The Tribunal has held that if the applicant fails to demonstrate that the delay was incurred in good faith it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Men's Non-Contact Hockey League, 2009 HRTO 579 and Dean v. Brantford Office Machines, 2010 HRTO 385.

17Accordingly, the Application is dismissed.