HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Iyirhiaro
Applicant
-and-
Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Iyirhiaro v. Toronto Transit Commission
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on July 20, 2010, alleging discrimination in employment on the grounds of race, colour, citizenship and disability.
2On August 23 2010, the Registrar sent the applicant a Notice of Intent to Dismiss (“Notice”) on the basis that the Application appeared to have been filed more than one year after the last incident of discrimination alleged in the Application. The Notice referred the applicant to section 34(1) of the Code, giving him an opportunity to state why his Application might be considered to have been filed within the one year limitation period. The Notice also referred the applicant to section 34(2) of the Code, giving him an opportunity to state why, in this case, a late Application might be accepted.
3The Application alleges that the termination of the applicant’s employment, by way of a layoff that occurred on November 4, 1992, contravened the Code. In his Application, the applicant noted that, in a meeting with his former supervisor on April 28, 2010, he was told that one of the four other individuals laid off with him had been rehired on the same day. Appended to the Application was a copy of a report dated October 6, 1992. The Application indicated that the report had just been discovered.
4In his response to the Notice, the applicant refers to two items of information that he discovered in, respectively, April and June of 2010. The first, apparently arising from his meeting with his former supervisor, is that the respondent re-hired “the most junior person amongst the five of us laid off the same day”. He goes on to indicate that the person rehired was not of the same “colour race or nationality” as him.
5The second item is the above-noted report, dated October 6, 1992, and comprised of seven paragraphs. The report states that on October 5, 1992, the applicant told his supervisor that he could not drive, and that “driving was one of the contributing factors to his occupational injury”. The report also contains the writer’s summary of a meeting with the applicant on October 2, 1992, concerning his “most recent medical restrictions”. The final four paragraphs include expressions of the writer’s view that the restriction on driving should have been mentioned by the applicant in the meeting of October 2, 1992, and the writer's assertion that he and another individual urged the applicant to “attend the medical office“.
6In his response to the Notice, the applicant explained that, after his layoff, “while recuperating from my workplace injury”, he filed a “complaint” with the Workers’ Safety and Insurance Board (“WSIB”), which had been dealing with a claim for compensation relating to his disability, the WSIB being “the authority I deemed appropriate to handle the resolution at the time”. After his meeting with his former supervisor on April 30, 2010, he wrote to the WSIB requesting information on his file, and discovered the report among that information in June, 2010.
DECISION
7An application will only be dismissed at a preliminary stage, before it is served on the respondents, 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: Brooks v. North York General Hospital, 2010 HRTO 453; Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.
8I have concluded that the part of the Application that alleges discrimination on the basis of disability does not attract the exceptions from the one year limitation period as set out in s. 34, and for the reasons set out below must be dismissed. However, it is not plain and obvious that the Tribunal is without jurisdiction in respect of the allegations of discrimination on the grounds of race, colour and citizenship.
9The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 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) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:
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.
10As noted above, pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal cannot deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith.
11In this case, the applicant had a meeting with a former supervisor, but not in the employment context. After his layoff, he claims no further dealings with the respondent other than those necessitated by his WSIB claim and complaint. I therefore cannot conclude that there was a series of incidents relevant to the Application that continued beyond 1992.
12I must therefore consider whether the applicant’s delay “was incurred in good faith and no substantial prejudice will result to any person affected by the delay”.
13In Lafleur v. Kimberley Scott, 2009 HRTO 1141, at paragraph 8, the Tribunal reviewed decisions of Ontario courts interpreting the phrase “delay that has been incurred in good faith”:
To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The 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] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).
14In another decision, the 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.
15In 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
16The term “reasonable” has both objective and subjective elements, both of which must be considered within the context of the Code. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, (“Miller”), both are briefly discussed. In regard to the objective element, the Tribunal stated:
The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
17The Tribunal in Miller also briefly alluded to the subjective element of “reasonable” noting that, while
the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay…there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). (at para. 25)
18In some cases, an applicant has established that a personal characteristic included as a ground of discrimination under the Code is closely connected to his failure to file his application on time; see for example Lutz v. Toronto (City), 2010 HRTO 769, and Kelly v. CultureLink Settlement Services, 2010 HRTO 977.
19In this case, the applicant has not claimed that his disability, or any other Code-related circumstances, might have interfered with his ability to pursue his rights under the Code in a timely manner.
20The applicant was clearly sufficiently concerned about his layoff while recuperating from a workplace injury to file a “complaint” with the WSIB, so I conclude that he had reason to make inquiries about his rights as they relate to disability. See Stewart v. Mitten Vinyl, above.
21Despite his concern, the applicant did not contact the Human Rights Commission to file a complaint of discrimination on the basis of disability, as he was then entitled to do. In the circumstances, I cannot conclude that the applicant’s delay of eighteen years in making a claim of discrimination on the basis of disability against the respondent meets the test of good faith as accepted by the Tribunal.
22Does the operation of the discoverability rule operate to change the result in this case? It appears to me that rule can be relied on where, as here, the limitation period is implicitly linked by the governing legislation to matters related to the injured party’s knowledge, or the basis of the cause of action. See discussion in Novak v. Bond, [1999] 1 S.C.R. 808, 1999 CanLII 685 (S.C.C.), a decision in which the Supreme Court of Canada concluded that the rule did not apply to a statutory limitation period. Decisions of this Tribunal have considered the rule. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241 and Ghafourian v. University of Toronto, 2010 HRTO 675.
23In relying on the discoverability rule, the applicant cites Novak v. Bond (above), a medical malpractice case in which, at para. 69, the Supreme Court discusses “the common law view that it is unfair to the plaintiff if the running of time commences before the existence of the cause of action is reasonably discoverable.” The Court noted that, “[t]o determine when the running of time should commence for the enumerated actions, the court is generally directed to consider the actions of a reasonable person in the particular plaintiff’s circumstances”. More recently, in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, the Supreme Court of Canada described the discoverability rule as follows:
The discoverability rule dictates that a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence.
24Given the applicant’s complaint to the WSIB, his circumstances in some respects resemble those of the applicants in Klein v. Toronto Zionist Council, 2009 HRTO 241. In that case, the Tribunal observed (at para. 23):
What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.
25In respect of that part of the Application that alleges discrimination on the grounds of race, colour, citizenship, most of the above-noted issues do not apply to the extent that it is plain and obvious, in the absence of a Response, that the applicant’s delay in filing the Application was not incurred in good faith. There is no evidence at this preliminary stage of the proceeding that substantial prejudice will result to any person affected by delay.
26The Tribunal shall deliver the Application and a copy of this Interim Decision on the respondents. This is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code. If the respondent takes the position that the Tribunal should dismiss the Application because of delay, it may apply to the Tribunal for an order. In that case, the applicant may be required to provide evidence to support his position that the delay was incurred in good faith and that the respondent is not substantially prejudiced by the delay, and the respondent will be required to establish that the delay was not incurred in good faith or that they are substantially prejudiced.
27I am not seized.
Dated at Toronto this 4th day of October, 2010.
”signed by”__________
Judith Keene
Vice-chair