der von Felix v. Pivotal Integrated HR Solutions, 2010 HRTO 563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans der von Felix

Applicant

-and-

Pivotal Integrated HR Solutions and Mike Salveta

Respondents

DECISION

Adjudicator: Kathleen Martin

Date: March 15, 2010

Citation: 2010 HRTO 563

Indexed as: der von Felix v. Pivotal Integrated HR Solutions

ORAL SUBMISSIONS BY

Hans der von Felix, Applicant ) Self-represented

Pivotal Integrated HR Solutions and )

Mike Salveta, Respondents ) Navroop Bhandal, Counsel

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed on June 4, 2009. The Application alleges discrimination in employment and contracts on a number of grounds including race, colour, ancestry, ethnic origin and reprisal.

2The Application states that the date of the last event is January 17, 2006. Because the Application was filed more than a year after the last event, the Tribunal issued a Notice of Intent to Dismiss highlighting the issue of delay and inviting the applicant to file written submissions explaining why he believed the Application is within the Tribunal’s jurisdiction. Submissions were filed and the Tribunal then issued an Interim Decision 2009 HRTO 1340, scheduling a one hour hearing by teleconference call for the purpose of hearing oral submissions on the delay.

3Following the Tribunal’s Interim Decision, the applicant filed two further emails setting out his reasons for the delay in filing the Application, along with related documentation.

4A hearing by conference call occurred on March 5, 2010. The Tribunal heard submissions from the applicant and counsel for the respondents. In the course of his submissions, counsel for the respondents corrected the name of the corporate respondent, which I have amended accordingly, along with the style of cause.

5This Decision addresses the question of whether having regard to the delay, the Application can proceed.

DECISION

6Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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 release; 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.

7Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or if there was a series of incidents, more than a year after the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist; namely that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim.... [Emphasis added.]

9In this Application, the applicant explained that he was filing late because the law firm that he retained “has yet to take care of this matter…and claims forms faxe[d] to the Ontario Human Rights Commission in 2006 no confirmation received nor assigned number”. However, in the materials filed subsequently and in the conference call, the applicant did not provide any elaboration on a complaint filed at the Commission, (suggesting that he had no further information from his former lawyer) and instead focussed his submissions on his difficulty in getting documentation from his former counsel which he believed he needed to support his filing at the Tribunal and for the hearing of his Application.

10On the issue of documentation, the applicant states that he originally gave his former counsel the documentation which he wanted to rely on to file his Application (which he particularizes as including a letter of acceptance of employment, statements of employees, an email exchange with the corporate respondent and faxes between his counsel and the corporate respondent). He stated that his counsel would not release the documents to him when he ceased to act for him in the summer of 2006. The applicant argues that he took steps to get his documents by filing a complaint about his former counsel with the Law Society of Upper Canada and then when he was not successful with that claim, proceeded to raise his concerns with the Ombudsman. The applicant also refers to his hard drive on his computer crashing which also led to difficulties in getting copies of his documentation. The applicant states that in mid to late 2008 he began to contact former co-workers regarding obtaining other copies of the documents that he believed he needed and that it took additional months to obtain the documents.

11The respondents take issue with the applicant’s position and suggest there is an absence of good faith. If the Tribunal finds good faith, the respondents argue that they would be substantially prejudiced by the Application proceeding because a number of the potential witnesses, who were identified, are no longer employed with the respondents.

12I find the applicant has not satisfied me that his delay was incurred in good faith. The applicant acknowledges that he understood from the time of his termination in January 2006 that he had a human rights complaint. While I can appreciate that he initially retained counsel and understood that his counsel was looking after his interests, it is apparent that from the summer of 2006 that the retainer had ceased.

13In assessing the time period from that point on, I do not find he has provided a reasonable explanation for the delay. Even accepting that he was unable to get certain documents from his counsel, I have difficulty in relying on the absence of documents to justify the delay given that there is no requirement that documents be filed with an application at the Tribunal. Further, and in any event, there is the length of the delay. Even assuming that the applicant believed it necessary to locate his documentation prior to filing, I cannot find based on his submissions that he acted with due diligence in obtaining the documents. The applicant’s explanation was that only after he could not obtain the documents from his former counsel did he attempt other avenues such as former co-workers. These submissions do not constitute a reasonable explanation for an almost 2.5 year delay in filing the Application.

14In summary, I do not find that the applicant has met the onus imposed on him to satisfy the Tribunal that the delay in filing this Application was incurred in good faith. Having come to such conclusion, there is no need to address the issue of whether or not the respondent suffered substantial prejudice as a result of the late filing.

15The Application is dismissed.