Gagne v. Maximum Mining, 2010 HRTO 689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gilles Gagne

Applicant

-and-

Maximum Mining Inc.

Respondent

DECISION

Adjudicator: Alison Renton

Date: March 29, 2010

Citation: 2010 HRTO 689

Indexed as: Gagne v. Maximum Mining

APPEARANCES

Gilles Gagne, Applicant ) On his own behalf

Maximum Mining, Respondent ) Michael Gauthier, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which alleges discrimination in employment on the basis of disability, association and reprisal. The Application was filed February 19, 2009 and identified February 13, 2007 as being the date of the last event upon which the Application was based.

2In its Response, the respondent requested early dismissal on the basis of section 45.1 of the Code which permits dismissal of an application if another proceeding (in this case a WSIB proceeding) has in whole or part appropriately dealt with the substance of the application. It also alleged the Application was filed late without adequate explanation on the part of the applicant.

3The Tribunal issued an Interim Decision (2009 HRTO 1111) in which the respondent’s request for dismissal pursuant to section 45.1 of the Code was dismissed. The Interim Decision stated that a conference call hearing would be scheduled in order to address the delay issue.

4A conference call hearing was held on March 8, 2010 and the Tribunal heard submissions from both parties. It became apparent during the conference call hearing that February 13, 2007 date identified on the Application form as being the last date upon which the Applicant was based should have been February 13, 2008 (the date the applicant’s employment was terminated) rather than 2007.

Delay in Filing the Application

5The applicant submits that the delay in filing his Application was made in good faith. In explaining why his Application was filed more than one year after the date of the event, the applicant submitted that he was going through emotional distress and had a hard time preparing his case. He sought medical treatment for emotional distress before he was terminated. After he was terminated, he contacted the Ontario Labour Relations Board, which indicated that his issues were WSIB related. He contacted his MPP’s office which referred him to the Office of the Worker Advisor, which provided him with representation in WSIB matters. He has now sought legal representation with a law firm in Timmins for both his WSIB matter and his Application, although he was self-represented during the conference call hearing. He wrote on his Application that he’s been to see every type of social service and stated during the conference call hearing that those services were with respect to obtaining financial help. He stated that he sent his Application by regular mail instead of by Purolator and submitted on his Application form that recounting the allegations of discrimination made him ill.

6The respondent stated that the only prejudice that it has incurred are the normal difficulties with respect to the fading of human memories that occur the longer a process takes.

7Section 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 in a series of incidents) to which the application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the application relates unless the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no one would be substantially prejudiced by the delay:

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 subsection 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.

8As was clarified during the conference call hearing, the date of the last incident upon which the Application is based was February 13, 2008. However, the date of filing, February 19, 2009, still falls outside the one year period permitted under the Code.

9Although the delay is short, 6 days, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith. The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith.

10In order to satisfy the Tribunal that the delay was incurred in good faith, 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, even if the delay is a relatively short one (see Cartier v. Northeast Mental Health Centre, 2008 HRTO 1670).

11In this case, the applicant submits that he suffered from emotional distress, for which he received medical treatment before his employment was terminated. He contacted the Ontario Labour Relations Board, his MPP and the Office of the Worker Advisor in relation to his termination and his WSIB issues. He submitted his Application by regular mail, not a form of express post.

12Efforts to pursue one’s rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2) (see Kelly v. CultureLink Settlement Services, 2010 HRTO 508; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. With respect to the applicant’s position that recounting the allegations of discrimination made him ill, I find that there is no evidence other than his written submission to support this position. Furthermore, his efforts following his termination to address his WSIB matters by contacting the Ontario Labour Relations Board, his MPP, and the Office of the Worker Advisor are not consistent with those of a person who is so significantly impacted by the alleged discrimination that he is unable to proceed with filing a human rights application and supports the position that the applicant “was not disabled to the extent that [he] was not able to function,” a factor the Tribunal found to be relevant in Imrie-Howlett v. Peel District School Board, 2009 HRTO 1296 and Kyereme v. Windsor Police Service, 2009 HRTO 1850.

13Having carefully considering this matter, I find that the applicant has not established that the delay in filing his Application was incurred in good faith as required by section 34(2) of the Code.

14The 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 determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579 and Dean v. Brantford Office Machines, 2010 HRTO 385.

15Accordingly, the Application is dismissed.