David Alliman v. Dew Engineering and Development Ltd. and Stephan Dunn, 2010 HRTO 1651

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Alliman

Applicant

-and-

Dew Engineering and Development Ltd. and Stephan Dunn

Respondents

DECISION

Adjudicator: Mary Truemner

Date: August 6, 2010

Citation: 2010 HRTO 1651

Indexed as: Alliman v. Dew Engineering and Development

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 24, 2010, alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin. The allegations stem from a number of events, the most recent of which the applicant estimates took place in early May 2008, and which appears to be his termination of employment.

2A Notice of Intent to Dismiss (“NOID”) was issued on May 21, 2010, indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination. The NOID directed the applicant to file submissions regarding the Tribunal’s jurisdiction within 30 days, but the applicant has failed to do so.

3The Application arises out of the applicant’s employment with the respondents. The applicant alleges that he was discriminated against when his employer reprimanded him, required him to take jobs he did not want to do, and terminated his employment. It would appear from the Application that the termination of employment occurred in May 2008. The Application provides the following reason for filing more than one year from the last event of alleged discrimination:

Because of the letter which I was coerced to sign, I thought that I had waived all my rights. Even though whenever I thought about how I was treated, it makes me upset to think that this company can continue practices of discrimination without being held accountable for their actions. Other minorities should not have to go through what I had to endure from this company. This company should be made to stop these practices of discrimination, and educate their foremen and supervisors in better employee relations. I have been made to suffer as a result of the actions taken by Dew Engineering.

4Section 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.

5The 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.

6In 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. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. 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.

7In this case, the applicant did not provide any submissions to explain the delay despite the NOID requiring him to do so, but the Application states that the applicant thought that he had waived his rights by signing a document at the time of collecting his last paycheque. By filing the Application, the applicant must have determined at some point between signing that document referred to in the Application and applying to the Tribunal that he may not be prevented from filing his Application.

8The 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), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer v. Scherer, 2002 CanLII 44920 (ON C.A.) at para. 24. See also Lafleur v. Kimberley Scott, 2009 HRTO 1141, Vaya v. Apache Burgers, 2010 HRTO 1289, and Waithe v. Brofort, 2010 HRTO 1254.

9The applicant has simply asserted that he was not aware of his legal rights and has not established that he had no reason to inquire about his rights at an earlier time. 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. This Application is therefore dismissed.