Matthew Deveaux v. A & P Food Corporation-Food Basics and Jeffrey Milljours, 2010 HRTO 723

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Deveaux

Applicant

-and-

A & P Food Corporation-Food Basics and Jeffrey Milljours

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: March 31, 2010

Citation: 2010 HRTO 723

Indexed as: Deveaux v. A & P Food

1This Application, filed on July 15, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), involves allegations of discrimination on the basis of race and colour in the context of employment. The allegations relate to incidents which occurred two years before the Application was filed.

2On February 12, 2010, the Tribunal issued a Notice of Intent to Dismiss and Incomplete Application (“NOID”). The NOID indicated that the Application appeared to have been filed more than one year after the last incident of discrimination. The Tribunal invited submissions from the applicant as to whether the Application is within the Tribunal’s power to decide (jurisdiction) pursuant to section 34 of the Code. The NOID also required the applicant to file a complete Application.

3Section 34 of the Code states:

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.

4The applicant responded to the NOID on March 15, 2010. He states that the delay in filing the Application was due to his not being aware of the Tribunal, the limitation period or the availability of a remedy. He also states that he felt despondent because of his union’s handling of his complaint.

5The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

6In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

7In essence, the applicant submits that the delay in filing the Application occurred because he did not take steps to ascertain his rights until after the expiration of the limitation period. While ignorance of one’s rights may, in some circumstances, amount to good faith, it is incumbent on the applicant to establish that he also had no reason to make enquiries about his rights: Lutz v. Toronto (City), 2009 HRTO 1137.

8The applicant has not satisfied this requirement in this case. He did, in fact, take steps to assert his rights following his termination: he complained to his union and, within approximately six months, he received a negative response from the union. Based on this, I conclude that the applicant had reason to make enquiries about his rights and did, in fact, make enquiries.

9The applicant has not satisfied me that the delay in filing the Application was in good faith. Accordingly, the Application is dismissed pursuant to s. 34 of the Code.