Johri v. General Motors of Canada, 2010 HRTO 1577

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadeem Johri

Applicant

-and-

General Motors of Canada, Scott Pemberton, Dan McWhiter, Phill Smith, Justin Wintle, Nicole Johnson, Rick Montheith

Respondents

DECISION

Adjudicator: Ena Chadha

Date: July 20, 2010

Citation: 2010 HRTO 1577

Indexed as: Johri v. General Motors of Canada

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on March 12, 2010. The allegations in the Application concern the applicant’s employment and the termination of that employment on September 16, 2008. The applicant alleges that he was discriminated against in employment and dismissed because of disability.

2On June 1, 2010, the Tribunal issued a Notice of Intent to Dismiss because the Application was filed more than one year after the last incident of discrimination. The Tribunal invited the applicant to file submissions within 30 days of June 1, 2010, explaining why the Application was filed beyond the one-year limitation period established under the Code.

3The applicant filed submissions on June 29, 2010.

DECISION

4Section 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.

5I find that the last incident of alleged discrimination cited in the Application is September 16, 2008, the date of employment termination. Accordingly, the Application, filed over one year later does not meet the requirements of section 34(1).

6On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith.

7The applicant states that the delay in filing the Application was because he was seeking the assistance of his local and national union; however, little help was forthcoming. The applicant notes that he was asking his human rights union representative to file a complaint since his dismissal, but that she failed to do so. The applicant indicates that he also approached an MP’s office for advice. The applicant further indicates that he was preoccupied with legal and financial matters involving his divorce and that he “lost track of time” because of the emotional problems associated with his back pain. The applicant submits that he ultimately received free advice through a legal clinic about filing his Application on-line and he did so.

8Although the applicant alleges that his union did little to help him, the documentary material in the file indicates that a grievance arbitration was held regarding the applicant’s employment situation and that the arbitrator upheld the applicant’s dismissal because he breached the last chance agreement with the employer.

9Further, the applicant’s submissions provide no dates, timeframes or documentation regarding his contacts with union representatives, the MP’s office and the legal clinic. As such, it is unclear when the applicant made his efforts to pursue his concerns. The various references to the individuals the applicant approached for support in the absence of any information regarding timelines does not sufficiently explain why the applicant was not able to act in a more timely fashion.

10The applicant’s submissions indicate that the delay was caused because he was exploring other avenues in an attempt to resolve matters. The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

11The 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 Code’s objective that human rights claims should be dealt with fairly and 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. Based on the information before the Tribunal, the applicant has not demonstrated why he 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.

12In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

13The Application is dismissed.