Gayathri Seetharam v. Iogen Corporation, 2010 HRTO 1811

Human Rights Tribunal of Ontario

B E T W E E N:

Gayathri Seetharam

Applicant

-and-

Iogen Corporation

Respondent

DECISION

Adjudicator: Ena Chadha

Date: September 2, 2010

Citation: 2010 HRTO 1811

Indexed as: Seetharam v. Iogen

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”), alleging discrimination with respect to employment on the basis of race and ethnic origin. The Application was filed on June 30, 2010. The allegations in the Application concern the applicant’s employment and the termination of that employment on November 11, 2002.

2On August 24, 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 August 24, 2010, explaining why the Application was filed beyond the one-year limitation period established under the Code.

3The Tribunal received the applicant’s written submissions on August 27, 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.

5The threshold question in applying section 34 to the circumstances is what constitutes the “incident” to which the Application relates. Although the applicant acknowledges that her employment was terminated on November 11, 2002, the applicant noted, in response to Question 7 of the Application, that the date of the last discriminatory incident was May 21, 2010. The May 21, 2010 date refers to a letter the applicant received from the respondent’s representative asking her to refrain from making any further contact with the respondent or its employees, except through a lawyer. The May 21, 2010 letter also indicates that, if the applicant fails to comply with this request, the respondent will have no choice but to seek the assistance of legal authorities. It appears that the respondent’s letter was precipitated by various communications and correspondence from the applicant requesting that her concerns regarding the alleged unfair termination in 2002 be addressed. The applicant suggests that the ultimatum issued in the May 21, 2010 letter is an example of the discrimination she experienced in 2002.

6I do not accept the applicant’s contention that the alleged discrimination she experienced when her employment was terminated in 2002 has continued until, or reoccurred in 2010, simply because the respondent has requested that the applicant communicate her demands regarding her dismissal through a lawyer. The applicant’s and respondent’s interactions in 2010 are directly in reference to the 2002 dismissal. The 2002 dismissal is the action which the applicant perceives to be discriminatory and is at the heart of her Application. This is acknowledged in her written submissions, wherein she states that “I agree that the Application has been filed more than a year after the incident of discrimination.” As such, I find that the last incident of alleged discrimination cited in the Application is November 11, 2002, the date of the employment termination.

7The applicant states that the delay in filing the Application was because she was unaware of her right to seek legal recourse before human rights authorities. The applicant further indicates that she “was in a state of shock” because of the wrongful dismissal. The applicant submits that no substantial prejudice will result to any other person affected by the delay because “[she] was the only person involved”.

8On 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.

9The 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.

10The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

11Based 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. While the applicant may well have experienced personal hardships following her dismissal, she has not established that she could not have pursued her rights within the timeline mandated by the Code. Accordingly, the Application, filed over one year later does not meet the requirements of section 34(1).

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.