Mercer v. Vic Priestly Contracting, 2010 HRTO 707

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Mercer

Applicant

-and-

Vic Priestly Contracting

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: March 30, 2010

Citation: 2010 HRTO 707

Indexed as: Mercer v. Vic Priestly Contracting

Appearances

Peter Mercer, Applicant ) On his own behalf

Vic Priestly Contracting, Respondent ) Brian Stokes, Representative

INTRODUCTION

1The applicant filed an Application on May 5, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2The Application states that the date of the last event to which the Application relates was August 22, 2007, approximately 19 months before the Application was filed.

3On May 8, 2009, the Tribunal issued a Notice of Intent to Dismiss because the Application was filed more than one year after the last incident of alleged discrimination. In an earlier Interim Decision, 2009 HRTO 985 dated July 7, 2009, the Tribunal ordered a preliminary hearing to determine whether the Application should be dismissed on the basis that it was filed beyond the one-year time limit prescribed in s. 34 of the Code.

4A preliminary hearing by way of teleconference was held on March 8, 2010.

Delay

5The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides as follows:

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.

6The Tribunal must first ascertain whether the last alleged incident of discrimination occurred more than a year prior to the applicant filing the Application. The inquiry under s. 34 does not end upon the factual determination alone that no alleged incidents occurred within the previous year. Section 34(1) must be read in conjunction with s. 34(2), which provides the Tribunal with the discretion to assess the good faith of the applicant and the prejudice to any affected person of waiving the time limit. Only after a complete consideration of s. 34 as a whole, and its application to the facts at hand, can the Tribunal decide whether to dismiss for delay.

POSITION OF THE APPLICANT

7The applicant concedes that all of the events to which the Application relates occurred outside the limitation period. His explanation for the delay in filing the Application is that he did not know about the Tribunal process. He admits that “ignorance” of the law is his only excuse. He argued that ignorance is not bad faith. His wife was doing her best to help him find avenues of redress for workplace issues that he believed were wrong at the time they occurred. After apparently going through the phone book and making numerous phone calls, the applicant’s wife learned about the Code and the Tribunal, and eventually the applicant was able to file the Application.

DECISION

8In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

9In Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8, the Tribunal adopted the reasoning of the courts and stated that

failure to act in ignorance of one’s rights may, in some circumstances, amount to ‘good faith’. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights. (quoting from Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.))).

10In this case, while I am sympathetic to the applicant’s circumstances, I cannot find that the delay was incurred in good faith. By his own admission, he believed he had been wronged from the time of the alleged incidents. He did not advance a reasonable explanation as to why it took him, even with his wife’s assistance, 19 months to obtain information about the Code and the Tribunal process and file the Application. Even with limited means and personal challenges, the one-year timeframe established by the legislation should provide most individuals, absent exceptional circumstances, ample time to learn about the process if serious inquiries are made.

11In the circumstances, I am therefore not convinced that the applicant has provided a reasonable explanation for the delay in filing the Application. I find that the delay was not incurred in good faith. The Application is dismissed.