HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kelly Bissonnette
Applicant
-and-
Liquor Control Board of Ontario
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Bisonnette v. Liquor Control Board of Ontario
Written Submissions By
Liquor Control Board of Ontario, Respondent ) Justin Diggle, Counsel
1This Application, filed on April 19, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), raises allegations that the respondent discriminated against the applicant in the context of employment on the basis of family status.
2In essence, the applicant was working full-time for a different employer and part-time for the respondent. Beginning in May of 2006, she was unable to work some of the shifts assigned to her by the respondent. The applicant states she was disciplined and ultimately dismissed because she was unavailable for assigned shifts.
3The applicant was dismissed in August 18, 2008. She grieved the termination. The grievance proceeded to arbitration and was ultimately denied in April of 2010.
BACKGROUND
4The respondent filed a Response in which it denies the allegations of discrimination and seeks the early dismissal of the Application:
a. pursuant to section 45.1 of the Code, because the grievance proceeding has appropriately dealt with the substance of the Application; and
b. pursuant to section 34 of the Code, because the Application was not filed within one year of the last incident of alleged discrimination.
5The respondent also filed a Request for an Order During Proceedings ("Request") seeking dismissal of the Application on the basis of delay.
6The Reply filed by the applicant did not address the Requests for early dismissal on the basis of delay. The applicant did not file a Response to the Request and the time for doing so has elapsed.
7On September 28, 2010, the Registrar wrote to the parties seeking further submissions from them regarding the issue of delay. The respondent filed written submissions in response to the Registrar's letter. The applicant has not filed written submissions and the time for doing so has elapsed.
DECISION
8Section 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.
9Accordingly, the 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.
10The initial onus is on the applicant to show that any delay in filing the Application was incurred in good faith. If she is able to establish good faith, the onus shifts to the respondent to show that it will suffer substantial prejudice as a result of the delay in filing the Application.
11In my view, the limitation period began to run on August 18, 2008, the date of the applicant's dismissal.
12I do not accept the applicant's suggestion that the last incident of discrimination occurred on the date the grievance was denied by the arbitrator. The arbitrator's decision to deny the grievance does not constitute an incident of discrimination for the purposes of calculating the time limits in section 34 of the Code.
13As the Application was filed outside the one-year limitation period provided for in section 34 of the Code, I must consider whether the delay was incurred in good faith. At a minimum, this requires that the applicant provide some reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424.
14The Tribunal has repeatedly held that waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a good faith explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991.
15Based on the materials before me, there is no basis to conclude that the delay was incurred in good faith.
16The Application is dismissed pursuant to section 34 of the Code.
17As a result, it is not necessary for me to determine the other issues raised by the respondent.
Dated at Toronto, this 4th day of November, 2010.
"Signed by"
Michelle Flaherty
Vice-chair