Loi Ton v. Workers United Ontario Council, 2010 HRTO 2316

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loi Ton

Applicant

-and-

Workers United Ontario Council

Respondent

DECISION

Adjudicator: Naomi Overend

Date: November 22, 2010

Citation: 2010 HRTO 2316

Indexed as: Ton v. Workers United Ontario Council

Written Submissions By

Loi Ton, Applicant ) Self-represented

1The applicant filed his Application on September 22, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination in employment on the basis of race, colour and place of origin. The allegations concern events that took place between 2002 and December 2008.

2A Notice of Intent to Dismiss (“NOID”) was issued on October 1, 2010, indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination and the applicant had not explained how the delay was incurred in good faith and why he believed no substantial prejudice would result to any person affected by the delay. The applicant sent in response submissions to this Notice on October 25, 2010.

Analysis and Decision

3Section 34 states, in part:

(1) If a person believes that any of her 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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

5In his Application, the applicant’s explanation for the delay is that for an unspecified period he was unaware of his rights under the Code. In addition, he states that he was afraid to pursue his rights because the respondent had the power to create a situation that would result in him being terminated from his job.

6In order to evaluate the applicant’s stated concerns, it is important to understand some of the background facts. The allegations concern the treatment of him by his union, the named respondent. In his Application, he makes reference to two duty of fair representation complaints to the Ontario Labour Relations Board about the respondent (Files No. 3575-04-U and 530-06-U). His Application makes reference to him retaining counsel in 2006 to deal with the fair representation matters

7In December 2008, the applicant was placed on lay-off, and on April 1, 2010, he was advised on the permanent closure of the plant. Prior to his lay-off, he appeared to have ongoing issues with the respondent. In the myriad of documents attached to his Application, there are emails from November and December 2008 from his then counsel at Torkin Maynes sent to counsel for the union attempting to get a letter from the respondent to complete his millwright certification.

8These actions are not consistent with the applicant’s assertion that he was so concerned by the potential misuse of the respondent’s power within the company that he did not attempt to enforce his rights.

9Moreover, the applicant provides no explanation for why he waited until September 22, 2010, nearly six months after his permanent lay-off (when he states that his concern about the respondent’s power abated), to file his Application. His Application and submissions make reference to a duty of fair representation complaint to the Labour Board filed on May 3, 2010, and yet he waited almost five months to file this Application.

10With respect to the applicant’s assertion that he was not aware of his rights under the Code to file with the Tribunal, he states in his Application that as of April 22, 2005, he believed he was being treated differently from another employee (who was vice-president of the Union) on the basis of race contrary to the Code. By his own admission, he had counsel in the period following that, and yet did nothing to pursue the vindication of those rights. To use the words of Miller, he failed to “act with all due diligence.”

11The applicant has, accordingly, provided no information on which the Tribunal could conclude that the delay was incurred in good faith. Given the absence of evidence that the 22-month delay was incurred in good faith, it is unnecessary to deal with the issue of potential prejudice to the respondent.

12The Tribunal is without jurisdiction to deal with this Application. The Application is accordingly dismissed.