HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carlo LoPapa
Applicant
-and-
Loblaws Companies Ltd.
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Lopapa v. Loblaws
1The applicant filed an Application on May 12, 2009 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination on the basis of disability in the context of employment.
2In essence, the applicant states that he was in receipt of short-term disability benefits from the respondent when he was involved in a car accident. He states that he was denied long-term disability benefits and that the respondent subsequently required him to return to modified work duties. The applicant states that he refused to return to work “because of his injuries” and that the respondent terminated his employment as a result.
3The respondent filed a Response in which it denies the allegations of discrimination and states that the applicant’s employment was terminated for just cause. In addition, the respondent has requested the early dismissal of the Application because:
a) a claim based on the same facts has been filed in civil court, requesting a remedy based on the alleged human rights violation. This claim was subsequently discontinued by the applicant;
b) another proceeding (a grievance) has appropriately dealt with the substance of the Application; and
c) the Application was filed outside the one year limitation period provided in the Code and the delay was not in good faith.
4The Respondent has also filed a Request for an Order During Proceedings (“Request”) seeking the dismissal of the Application on the basis set out in paragraph 3, above.
5The applicant’s Union, the United Food and Commercial Workers Canada, Local 1000A (“Union”) has filed a Request to Intervene.
6The applicant has not filed a Reply, nor has he responded to the respondent’s Request for Order or the Union’s Request to Intervene. The time for doing so has elapsed.
7In an earlier Interim Decision (2010 HRTO 1127), the Tribunal concluded that the respondent had raised a serious issue regarding the timeliness of the Application. The Tribunal gave the applicant a further opportunity to provide written submissions regarding this issue and advised that if he did not provide submissions, the Tribunal might determine the issue on the basis of the material already filed.
8The applicant did not file submissions in response to the Interim Decision and the time for doing so has elapsed. Accordingly, the following decision is based on the materials filed by the parties.
Timeliness
9There is no dispute that this Application was filed on May 12, 2009, more than one year after the last alleged incident of discrimination on October 24, 2007.
10Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within one year time of the alleged incident or the last incident in a series. It also gives the Tribunal discretion to accept late applications in certain circumstances.
11Section 34 states:
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.
12As the Application was filed outside the one year limitation period provided for in section 34 of the Code, I must consider whether the delay was incurred in good faith. At a minimum, this requires that the applicant provide some reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424.
13The applicant states that his delay in filing the Application was because the Union took almost 19 months to decide that it would not refer his grievance to arbitration.
14The Union states that it had advised the applicant that, although a grievance had been filed on his behalf, there was no guarantee that the grievance would proceed to arbitration. The Union denies deliberately delaying the grievance and states that, despite any ongoing grievance, it was open to the applicant to file an Application within the one year limitation period contained in the Code.
15In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.
16Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991.
17It was certainly open to the applicant to file a timely Application under the Code while he pursued his rights under the collective agreement. The applicant has not satisfied me that the delay in filing the Application meets the definition of “good faith” within the meaning of the Tribunal’s jurisprudence.
18The Application is dismissed pursuant to section 34 of the Code. As a result, it is not necessary for me to determine the other issues raised by the respondent.
Dated at Toronto, this 9^th^ day of August 2010.
”signed by”______________
Michelle Flaherty
Vice-chair