Meriano v. Benteler Automotive, 2010 HRTO 1551

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Meriano

Applicant

-and-

Benteler Automotive Canada Corp., Bill Mauris, Greg Thompson, Sean Bates and Sergio Cavalheio

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: July 16, 2010

Citation: 2010 HRTO 1551

Indexed as: Meriano v. Benteler Automotive

APPEARANCES

John Meriano, Applicant ) On his own Behalf

Benteler Automotive Canada Corp., Bill ) Mauris, Greg Thompson, Sean Bates and ) Sergio Cavalheio, Respondents ) Kelly McDermott, Counsel

Canadian Auto Workers Local 1285 ) Gerry Harvey, Representative

1This is an Application filed on January 19, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination and reprisal in respect of employment on the basis of disability and age.

2On March 22, 2009, the Tribunal issued a Notice of Intent to Dismiss because the Application appeared to have been filed more than one year after the date of the last incident of alleged discrimination and the Tribunal was not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The applicant was given 30 days to file written submissions explaining why he believed that the Application is within the Tribunal’s jurisdiction and should be decided by the Tribunal. The applicant did so.

3The Application states that the date of the last incident was July 6, 2007. In explaining the delay in filing, the applicant stated that he was unaware of certain facts until “some time after the initial instance”. He also stated that he relied, to his detriment, on the information given to him by people he thought were knowledgeable.

4A conference call was scheduled in order to provide the parties an opportunity to make submissions on the issue of delay. The parties were directed to deliver any additional documents or case law that they wanted the Tribunal to consider to each other and to submit it to the Tribunal 14 days prior to the teleconference.

5On June 18, 2010, the conference call on this matter took place. In addition to the applicant and counsel for the respondent, Gerry Harvey participated in the call on behalf of the union but did not make any submissions.

6For the reasons that follow, this Application is dismissed.

Analysis

7The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code reads as follows:

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 Tribunal must first ascertain whether the last alleged incident of discrimination occurred more than a year prior to the applicant filing the Application.

9The Application states that the last alleged incident took place on July 6, 2007. The applicant was laid off some time in March of 2008. The Application was filed on January 10, 2010, more than one year after both of the above dates.

10The inquiry under s. 34 does not end upon the factual determination alone that no alleged incidents occurred within the previous year. Section 34(1) must be read in conjunction with s. 34(2), which provides the Tribunal with the discretion to assess the good faith of the applicant and the prejudice to any affected person of waiving the time limit. Only after a complete consideration of s. 34 as a whole, and its application to the facts at hand, can the Tribunal decide whether to dismiss for delay.

11In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

12The applicant offered three reasons for the delay in filing the Application.

13The first is that despite having a feeling that his rights were being violated at the time of the last alleged incident in July, 2007, and despite raising the issue with his union, he did not file a grievance on the advice of his union. He said that having a conversation in January or spring of 2009, with an unnamed person whom he did not identify other than to say he had also worked for the corporate respondent, led him to believe that he then had proof that his rights were violated. However, the applicant did not adequately explain why he then waited a further year before filing the human rights Application.

14The Tribunal has held in a number of decisions that waiting to gather evidence or proof of discrimination before filing will not generally constitute a good faith reason for delay. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Klein v. Toronto Zionist Council, 2009 HRTO 241.

15The second reason offered for the delay by the applicant is that he relied on his union and the advice of knowledgeable people within it. It is not clear what the nature of the advice was or why, if the applicant believed that his rights had been violated, he did not take steps to seek redress either with or without the union’s involvement.

16Finally, the applicant suggests that he filed just over two and a half years after the last alleged incident because he was dealing with a number of other issues during the intervening period. Counsel for the respondents referred me to the Tribunal’s decision in Ramnath v. Peel Regional Police, 2010 HRTO 548 for the proposition that waiting for other legal proceedings to conclude will generally not constitute a valid explanation for delay in filing an Application.

17In the circumstances, I am not convinced that the applicant has provided a reasonable explanation for the delay. Of particular importance to me in reaching this conclusion is the applicant’s assertion that he felt at the time of the last alleged incident that his rights were violated. In my view, he has not provided a reasonable explanation for waiting for two and half years before taking action. I am not persuaded by his explanation that a chance conversation with an unnamed individual gave him the proof he felt he needed and, in any event, there is no explanation for the further delay of a year after that event.

18I find that the delay was not incurred in good faith and, as a result, it is not necessary for me to consider the parties’ submissions concerning prejudice to the respondents.

19The Application is dismissed.