HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anna Moffat
Applicant
-and-
Northhampton Group Inc., Comfort Hotel Downtown Toronto, Asher Samuel and Satish Kumar
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Moffat v. Northampton Group
INTRODUCTION
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on August 28, 2009. The applicant alleges that she was discriminated against on the basis of sex, ancestry, creed and reprisal during her employment with the organization respondent and in being terminated. The date of the last event, the applicant’s termination, is identified as August 25, 2008.
2The respondents were served with the Application, along with the applicant’s union, Unite Here, Local 75. Initially, the respondents did not file a Response, but took the position that the Application should be dismissed based on delay. The respondents argued that the delay was approximately two months given that the Tribunal had initially found that the Application, filed on August 28, 2009, was not complete and the Application had been served on the respondents only when question 4 on the Form 1 was clarified on October 19, 2009.
3On November 9, 2009, the Tribunal issued an Interim Decision addressing the respondents’ position. The Tribunal made reference to Section 34 of the Code and Rules 6.4 and 6.5, which are set out again for ease of reference:
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.
6.4 Upon receiving an Application, the Tribunal will determine whether it complies sufficiently with these Rules to allow it to be processed. An Application filed under Rule 6.1 that is not sufficiently complete:
a) may be sent back to the Applicant with an explanation as to how the Application is incomplete, and
b) may be re-submitted not later than (twenty) 20 days after the date that the Application was sent back.
6.5 If the Tribunal determines a re-submitted Application can be processed, it will be dealt with as if complete on the day it was originally filed with the Tribunal for the purposes of s. 34(1).
4The Tribunal stated that the Application was processed in accordance with these Rules such that once the Tribunal determined that it was complete, it was dealt with as if complete on the date originally filed, i.e. August 28, 2009. However, given that the Application was filed outside the one year period, the Tribunal sought submissions on the request to dismiss for delay. The respondents were also directed to file a complete Response (Form 2).
5The Tribunal has now received Responses from all respondents, as well as submissions on the issue of delay from all the parties, along with the applicant’s union. A single Response has been filed by two of the respondents (the organization respondent and Mr. Kumar) and a separate Response by Mr. Samuel.
6Notwithstanding the Tribunal’s Interim Decision, both parties have presented additional submissions on the Tribunal’s application of its Rules in so far as an application is processed as if complete on the day it was originally filed. Having regard to the submissions, the Tribunal addresses and confirms its decision in this regard.
THE PARTIES’ SUBMISSIONS
7The applicant argues that the proper calculation of delay is three days and that although filed late, the delay was incurred in good faith. The applicant states that she found the process of working on her Application upsetting and painful. She states that she sought the help of her doctor who arranged for a personal counselor. The applicant states that she was in a complete panic when August 25, 2009 arrived and that her counselor was unavailable to help on the specific days she needed assistance so that by the time she was able to “pull it together”, she was three days late.
8The respondents continue to assert that the delay is approximately two months since the Application filed on August 28, 2009 was incomplete. The organization respondent and Mr. Kumar argue that to the extent the Tribunal relies on Rules 6.4 and 6.5 in calculating the time limit, the Rules are void and of no legal force or effect given that they contradict the clear wording set out in section 34 of the Code of a 12 month time limit. In any event, the respondents state that even if it is a three day delay, the Application should be found to be out of time because the applicant has failed to establish by “evidence” that her delay was incurred in good faith. In this respect, the respondents argue that the applicant has filed submissions only and the submissions are lacking in the type of evidence which would justify a “lengthy delay of over one year”.
9The respondents also rely on section 45.1 of the Code arguing that there were other proceedings that were available to the applicant – namely to pursue her issues through her union and proceed with various outstanding grievances – which she inexplicably and in bad faith chose not to pursue.
10The applicant’s union has responded to the Application indicating that it is not seeking to intervene. The union confirms that various grievances were filed on behalf of the applicant, but they were not proceeded with because the applicant did not respond to the union’s inquiries regarding her interest in pursuing the same.
HOW LATE IS THE APPLICATION?
11As 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 has no jurisdiction to deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith and no substantial prejudice will result.
12The applicant filed her Application on August 28, 2009. Initially, Form 1 of the Application identified the corporate respondent and one individual respondent, whereas Form 1A identified three individual respondents. Having regard to this difference, the Tribunal sent the applicant another copy of question 4 (respondent contact information) and asked her to complete, sign and return the document by October 19, 2009, which the applicant did.
13With respect to the length of delay in this case, the Tribunal finds that the delay is three days. To the extent there was any ambiguity in the Tribunal’s earlier Interim Decision, the Tribunal reiterates that it processed the Application in accordance with its Rules and determined it was complete on the date originally filed. The Tribunal does not find that its Rules are inconsistent with the Code. The Code provides that a person may “apply” within one year and grants the Tribunal broad powers to make rules governing the practice and procedure before it (s. 43). Consistent with this power, and the Tribunal’s expertise in interpreting and applying the Code, the Tribunal’s Rules provide that an application will be dealt with for the purposes of s. 34, based on the date originally filed with the Tribunal. Therefore, the applicant did apply within three days of the expiry of the one year period as required by the Code.
14In this case, the applicant has to show that the delay of three days was incurred in good faith. The fact that it is such a short period of time is significant. The Tribunal has held that the length of the delay in filing an Application is a factor to be considered in determining whether such delay was incurred in good faith: Stathis v. Thyssenkrupp Fabco, 2009 HRTO 294. On the other hand, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith, because the Tribunal does not have jurisdiction to hear Applications filed outside the time permitted by the Code unless the delay was incurred in good faith and no substantial prejudice would result to anyone affected by the delay: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1690 at para. 20.
15Because it is such a short period of time, and given the applicant’s submissions about attempts to obtain medical assistance and counseling help to enable her to meet the deadline, it may be that the delay in filing the Application was incurred in good faith. However, before determining whether or not the delay was incurred in good faith, the Tribunal would have to hear evidence on the issue since the facts asserted by the applicant are challenged by the respondents.
16Having carefully considered this matter, I find that it is most fair, just and expeditious to proceed as follows. The applicant and two of the respondents have indicated their interest in mediation. The Application will be set down for mediation unless the respondents (the organization respondent and Mr. Kumar) advise the Tribunal in writing within 7 days of this Interim Decision that they are no longer interested in mediation. The respondent who has not indicated an interest in mediation will receive notice of the mediation and can determine whether or not he wishes to participate. If the respondents advise they are no longer interested in mediation, or the mediation occurs but does not resolve the Application, the Tribunal will issue further directions concerning a hearing on the issue of timeliness, and if necessary on the merits of the Application.
Respondent’s Request to Dismiss Under Section 45.1/Abuse of Process
17The respondents have also argued that the applicant ought not to be forum shopping and that pursuant to section 45.1 of the Code and its power to prevent an abuse of its process, the Tribunal should dismiss the Application, given that there were other proceedings available to the Applicant, namely union grievances, to pursue her concerns.
18Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
19Section 45.1 addresses situations in which another proceeding has dealt with the substance of the Application, not in which another proceeding could deal with it. The existence of other avenues is not by itself a basis for the application of section 45.1: Maurer v. Metroland Media Group, 2009 HRTO 200.
20Further, although the Tribunal has the jurisdiction to make such orders or give directions to prevent an abuse of its process, there is no requirement in the Code that an applicant pursue alternative avenues of redress and nor has the Tribunal ever required that an applicant pursue an alternative avenue of redress since the amendments in 2008.
21I do not find that section 45.1 or abuse of process is engaged by this Application. While it appears that union grievances may have been filed at some point, even assuming that the grievances constituted another proceeding, there appears to be no issue that the grievances were not pursued. In the circumstances, section 45.1, which requires that another proceeding “appropriately dealt with” the situation, is not engaged. Further, I do not find that the applicant is engaging in an abuse of the Tribunal’s process by electing not to pursue grievances. Accordingly, the request to dismiss on the basis of section 45.1 and an abuse of process is denied.
20I am not seized.
Dated at Toronto this 9^th^ day of March, 2010.
“Signed By”
Kathleen Martin
Vice-chair```