Sudac v. Office of the Ombudsman of Ontario, 2010 HRTO 1744

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cindy Sudac

Applicant

• and-

Office of the Ombudsman of Ontario, Andre Marin, Wendy Ray and Laura Pettigrew

Respondents

DECISION

Adjudicator: Ena Chadha

Date: August 24, 2010

Citation: 2010 HRTO 1744

Indexed as: Sudac v. Office of the Ombudsman of Ontario

BACKGROUND

1This Decision deals with an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application was filed on May 26, 2010, and alleges discrimination and reprisal in employment on the basis of sex. The applicant alleges that the respondents terminated her employment because of pregnancy in August 2008. However, the applicant alleges that the last discriminatory incident was in February 2010, when the severance benefits (monetary and non-monetary) provided by the respondents ended.

2Section 34 of the Code states:

(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.

3On July 19, 2010, the Tribunal Registrar sent a Notice of Intent to Dismiss to the applicant which noted that the Application appeared to be outside of the Tribunal's jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal's jurisdiction.

4The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

5The Tribunal has not yet delivered the Application to the respondents. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.

APPLICANT'S SUBMISSIONS

6The applicant filed written submissions on July 16, 2010, asserting that there was good faith and further that the Application was filed within the one-year time limit under section 34. With respect to the first part of the section 34 test, the applicant submits that any delay in filing her Application was incurred in good faith because she experienced pregnancy complications and stress which precluded her in pursuing her Application. Although the applicant claims that medical documentation exists, she did not file any medical documentation in this regard. The applicant notes that she sought legal advice after the employment termination in August 2008 until November 2008, but did not act on her rights because she feared, as a single mother, losing the income benefits being paid by the respondents. The applicant further indicates that her concerns continued until February 2010, when the career counseling aspect of the termination agreement offered by the respondents (which the applicant did not sign) were not delivered in a satisfactory manner. The applicant did not address the second part of the test, that there is "no substantial prejudice" to any person affected by the delay.

DECISION

7In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) 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.

8An application will only be dismissed at a preliminary stage, prior to service on the responding party, if it is "plain and obvious" on the face of the application that it does not fall within the Tribunal's jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167. It is noteworthy that efforts to pursue one's rights elsewhere and/or late discovery of one's rights, without more, have been found not to justify delay. See: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

9It is clear that the applicant's human rights concerns relate to the termination of her employment in August 2008, which she alleges was due to her pregnancy. While the applicant also claims that her concerns regarding inadequate career counseling occurred in February 2010, she does not allege that these concerns were related to a Code-protected ground of discrimination. As such, the last alleged discriminatory incident was in August 2008, when the applicant's employment was terminated.

10While the applicant claims that she experienced pregnancy complications which gave rise to the delay, she acknowledges that she contacted a lawyer to review the severance documentation and received some advice in this regard. The applicant's submissions make clear that she concluded it was best to not sign the termination agreement and not seek legal recourse while the respondents proceeded to carry out the terms of the severance offer (salary top-up until February 2010).

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.

12The applicant's claims of health concerns do not sufficiently explain why the applicant was not able to act in a more timely fashion and file her Application within the required one-year time frame given that she had sought legal advice over the course of a number of months. Based on the information before the Tribunal, the applicant has not demonstrated why she 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.

13In 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.

14The Application is dismissed.