HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Post Meridiem (P.M.) Plastics Ltd.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: October 19, 2010

Citation: 2010 HRTO 1964

Indexed as: Christianson v. Post Meridiem (P.M.) Plastics

AppearanceS BY

Michael Christianson, Applicant ) Self-represented

Post Meridiem (P.M.) Plastics Ltd., ) Wayne Martinuik,

Respondent ) Representative

1This is an Application to the Tribunal filed on November 2, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he suffered discrimination in the area of employment on the basis of disability, sex, sexual orientation, record of offences, association with a person identified by a Code protected ground and reprisal. The allegations concern events that took place between October 23, 2000 and August 15, 2005, during the time that the applicant was employed by the respondent.

2The respondent company filed a Response and requested early dismissal on the basis of section 34(11) of the Code.

3By way of a Case Assessment Direction, the Tribunal sought the parties’ submissions on the issue of delay. Those submissions have now been received.

4For the reasons that follow, the Application is dismissed.

5Section 34 of the Code provides as follows:

(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.

6The applicant indicated that the date of the last in a series of events of discrimination took place on November 14, 2008, and in the body of the Application identified that date as “the last day that my previous employer would have been able to call me back to work”. However, there is a letter included in the Application, dated August 29, 2005, and other correspondence indicating that the applicant’s employment was terminated on August 15, 2005.

7The Case Assessment Direction specifically asked that the applicant address the issue of why he believed, despite the apparent termination of employment on August 15, 2005, that he still had recall rights as of November 14, 2008, and why November 14, 2008 should be treated as the date of an incident of discrimination within the meaning of section 34.

8The applicant appears to be relying on a decision made by an employee of Human Resources Development Canada in assessing his eligibility for Employment Insurance benefits that allowed his EI claim without disqualification. He relies on this as proof that he was laid off rather than terminated by his employer, and therefore retained recall rights. In his second set of submissions in response to the Case Assessment Direction, he characterizes the decision of the EI agent as the “company’s final decision”. The applicant submits that under the collective agreement, he had a right of recall that was not extinguished until November 14, 2008.

9It is clear from the material before me that the company did not lay off the applicant on August 15, 2005. Rather, it dismissed him for cause. Accordingly, the company did not view the applicant as retaining any right of recall under the collective agreement. The material does not establish that the company, at any time after August 15, 2005, reversed its decision to terminate the applicant and treat him as an employee on lay off, subject to recall rights. In the first set of submissions sent in response to the Case Assessment Direction, dated September 3, 2010, the applicant appears to acknowledge that a termination letter had been issued on August 15, 2005. He provided the Tribunal with the grievance filed on his behalf in regard to the termination which states “I Michael Christianson protest the action of the company for terminating my employment without just cause…”. There is no indication that the grievance resulted in a reversal of the company’s decision.

10Even if the continuing existence of recall rights could in itself provide a basis to extend a time limit for filing an application, there is no factual basis for such a result here. There is nothing in the material before me that establishes that the applicant had any recall rights as of November 14, 2008.

11Given the above, I am of the view that the November 14, 2008 date cannot be seen as the last in a series of incidents of discrimination and the Application has been filed more than four years after the employment relationship between the parties ended.

12The applicant has been active in pursuing litigation in a number of different venues in respect of his former employment with the respondent and has provided no reasons for me to conclude that this delay in pursuing his human rights application was incurred in good faith. As a result, it is not necessary for me to consider any potential prejudice to the respondent company.

13In addition, given my findings on the issue of delay, it is unnecessary for me to consider the respondent’s arguments concerning section 34(11) of the Code.

14The Application is dismissed.