Richard Dean v. Brantford Office Machines Ltd., 2010 HRTO 385

Human Rights Tribunal of Ontario

Between: Richard Dean, Applicant -and- Brantford Office Machines Ltd., Christine Nicholl and Larry Nicholl, Respondents

Decision

Adjudicator: Keith Brennenstuhl Date: February 18, 2010 Citation: 2010 HRTO 385 Indexed as: Dean v. Brantford Office Machines

Appearances By: Richard Dean, Applicant (Self-represented) Brantford Office Machines Ltd., Christine Nicholl and Larry Nicholl, Respondents (Thomas Graham, Counsel)

1This is an Application filed June 18, 2009 under section 53(5) of the Human Rights Code, R.S.O, c. H. 19 as amended (the "Code"). The underlying complaint (the "Complaint") was filed with the Ontario Human Rights Commission (the "Commission") on November 13, 2007. The Application alleges that the applicant was subjected to discrimination in relation to employment on the basis of disability.

2This Decision deals with the respondents' request that the Application be dismissed for lack of jurisdiction on the basis that the Complaint underlying the Application was filed with the Commission more than one year after the last incident of discrimination described in the Application. The hearing was held on February 12, 2010.

Background

3The last incident of discrimination alleged in the Application occurred in September 2006 when the corporate respondent confiscated a vehicle in the possession of the applicant which had been leased in the name of the corporate respondent for use by the applicant during the course of his employment with the corporate respondent. The applicant filed his Complaint with the Commission on November 13, 2007 more than one year after the last incident of alleged discrimination.

4Section 34 of the Code allows applications alleging discrimination under the Code to be made within one year of the incident (or last incident) of alleged discrimination. While the Complaint was filed when the old section 34 of the Code was in force, the Tribunal has found that the provisions of the current section 34 are applicable to applications, such as this one, filed under the transition provisions of the Code. See, for example, Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael's Hospital, 2009 HRTO 566; and, Chinatman v. Toronto District School Board, 2009 HRTO 1225.

5According to section 34(2) of the Code, an application made more than one year after the incident or last incident of alleged discrimination may only proceed before the Tribunal where the Tribunal is satisfied that the delay in filing the application was incurred in good faith and would not cause not substantial prejudice to any person affected by the delay.

6As stated in Miller v. Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must demonstrate something more than simply an absence of bad faith, otherwise, there would be little meaning to the limitation period. In my view, the limitation period of one year is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Accordingly, individuals must act with all due diligence and file their applications within one year when they seek to pursue human rights claims.

7In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has required applicants to provide a reasonable explanation for the delay: see, by way of example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

8In this particular case, the applicant has not provided any reason whatsoever for the delay in filing his Complaint. He makes several general comments about the difficulties in his life but I do not find that these general subjective statements are sufficient to demonstrate that he was unable to act with due diligence and file his Complaint in a timely manner.

9I find that the applicant has not established that the delay in filing his Complaint was incurred in good faith as required by section 34(2) of the Code.

10The Tribunal has held that if the applicant fails to demonstrate that the delay was incurred in good faith it is not necessary to make a further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

11Consequently, the Application is dismissed.