Jeffrey Cartier v. Securitas Canada Ltd., 2010 HRTO 546

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Cartier

Applicant

-and-

Securitas Canada Ltd.

Respondents

DECISION

Adjudicator: Mary Truemner
Date: March 12, 2010
Citation: 2010 HRTO 546
Indexed as: Cartier v. Securitas Canada

APPEARANCES

Jeffrey Cartier, Applicant ) On his own behalf

Securitas Canada Ltd., Respondent ) Daniel R. McDonald, Counsel

United, Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9597 ) Cathy Braker, Counsel

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 January 8, 2009, alleging that the respondent discriminated against him in employment on the basis of disability in May 2006.

2This Decision provides reasons for dismissing the Application at the conclusion of the hearing by Conference Call on March 9, 2010. That hearing dealt with the respondent’s Request for Order During Proceedings to dismiss the Application because it is out of time. The Application was filed approximately one year and eight months after the limitation period for filing expired.

BACKGROUND

3The applicant worked as a security guard for the respondent, a corporation which provided security services to various clients, including a client at whose site the applicant worked at the time of the alleged discrimination. Among other things, the applicant alleges that the respondent shared the applicant’s confidential medical information with that client, and he alleges that the respondent removed him from that client’s worksite while he was on medical leave in May 2006.

4The applicant filed a grievance soon after, but the grievance was withdrawn by his union in 2008. The applicant was no longer working for the respondent by the time the grievance was withdrawn in 2008 because he had been terminated in January 2007 for reasons unrelated to his removal from the 2006 worksite.

5The Application indicates that the applicant found work elsewhere in December 2007 and by April 2008 was working full-time with another employer. The Application indicates that the date of the last event upon which the Application is based was May, 2006, approximately two years and eight months before the Application was filed.

THE CODE

6The 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. Section 34 requires that the one-year limitation be calculated from the time of the discriminatory incident(s), and not from the time that an applicant discovers that his or her advocate is no longer pursuing the applicant’s rights under the Code.

7A person may apply to the Tribunal more than one year after the last incident of discrimination, but the Code allows this only in certain circumstances:

34(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.

8In order to satisfy the Tribunal that the delay was incurred in good faith, at a minimum, 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.

SUBMISSIONS BY THE APPLICANT

9The Application indicates that the last event upon which the Application is based was in May 2006, approximately two years and eight months before the Application was filed. In answering the question, “If you are applying more than one year from the last event, please explain why,” the applicant indicated in his Application that his union “was taking care of [his] grievance,” and he believed that his union was helping him. In his Reply, the applicant indicated that the Application was filed within time because it was filed within one year of learning from his Union that his grievance was withdrawn.

10At the hearing, the applicant argued that his delay in filing the Application was in good faith. He explained that once his grievance was filed, he understood that his union was looking after the matters later raised in his Application. He participated in mediation of the grievance on October 2, 2007. Mediation did not resolve the grievance and the union told him that the grievance would proceed to arbitration. After mediation, the applicant and his union exchanged a few phone calls, but were unable to get a date set for the next step in the grievance process. The applicant then heard nothing until October 2008 when he received mail from the union saying that it had dropped the grievance.

11With respect to the approximately three-month period between learning that his grievance had been withdrawn and the time he filed his Application, the applicant explained that he looked for a lawyer but couldn't find one who would agree to assist him on his terms. He therefore needed to file the Application without assistance, and it took him quite a while to get the right phone number for the Human Rights Tribunal.

12He did not rely on any other circumstances or condition to justify his delay in filing his Application. He said that by the time he learned that his grievance was withdrawn, he was working part-time and that he did not have a disability that would have prevented him from working.

REASONS

13Given the language of section 34 that the one-year time limit to file an Application is measured from “the incident to which the application relates,” I reject the applicant’s position that the time limit should be measured from when he learned the union had withdrawn his grievance. The time limit must be measured from May 2006, when the incidents he claims were discriminatory occurred.

14In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, a case which did not involve this applicant despite the coincidence of the same family name, the Tribunal addressed the issue of whether an applicant can establish that delay was in good faith on the basis of waiting for the outcome of another legal proceeding before filing a human rights application:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

15The applicant has not convinced me that waiting for his grievance to proceed is a valid explanation for delay in filing his Application, but even if it were, I do not find continuing good faith is demonstrated by the applicant’s reasons for waiting almost three additional months to file the Application after he knew the grievance was withdrawn. By the time he learned that his grievance was withdrawn, over two years had passed since the alleged incidents of discrimination. At that point, his Application was already over one year late, and he should have filed his Application immediately. I am not satisfied that the further delay was incurred in good faith with the applicant’s explanation that he needed several months to file the Application because he was looking for a lawyer, and because he could not find the right phone number for the Tribunal. (See also: Taylor v. CUPE Local 148, 2009 HRTO 1572; Baltrano v. Ontario (Community and Social Services, 2010 HRTO 268).

16In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal held as follows:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). 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.

17I agree that an applicant must act with due diligence in filing an Application in a timely way. (See also: Sood v. Ontario (Attorney General), 2009 HRTO 1564). The applicant did not do so in this case, and I am not satisfied that the delay in filing his Application was incurred in good faith within the meaning of section 34(2) of the Code.

18Accordingly, there is no need to address the respondent's position that it was prejudiced by the delay. Also, there is no need to address the respondent’s other preliminary Requests, or the Request to Intervene by the applicant's union, the United, Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9597.

19The Application is dismissed.