Kirshin v. CIBC Mellon Trust, 2010 HRTO 805

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melvyn Kirshin

Applicant

-and-

CIBC Mellon Trust Company

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 12, 2010

Citation: 2010 HRTO 805

Indexed as: Kirshin v. CIBC Mellon Trust

APPEARANCES

Melvyn Kirshin, Applicant ) On His Own Behalf

CIBC Mellon Trust Company, Respondent ) Julie O’Donnell and

) Meighan Ferris-Miles, Counsel

1This is an Application filed on June 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he suffered discrimination in respect of employment on the basis of disability.

2The respondent has sought early dismissal of the Application on the basis that it was not filed within one year and the applicant has signed a full and final release regarding the subject matter of the Application.

3In a Case Assessment Direction dated November 26, 2009, the Tribunal ordered that a conference call be held to allow the parties an opportunity to make submissions on the respondent’s request that the Application be dismissed. The Case Assessment Direction called on the parties to deliver any additional documents or case law that they wanted the Tribunal to consider to each other and submit it to the Tribunal 14 days prior to the teleconference.

The Facts

4The applicant was employed by the respondent , CIBC Mellon Trust Company, as a programmer analyst from October 2006 until the termination of his employment on March 5, 2008.

5On March 5, 2008, a letter confirming the termination of his employment and outlining the package being offered to him with an attached release was given to him by a representative of the respondent company. The letter stated that a response was required no later than March 13, 2008.

6Although the applicant lists the date of the last event of discriminatory conduct as June 18, 2008, it is not clear from any of the materials submitted to which event he refers, given that his employment ended on March 5, 2008, and the date on which he signed the documents sent to him by the respondent, including the “Final Release”, was March 13, 2008.

7The language in the termination letter and “Final Release” included a reference to “any claims under any applicable human rights …legislation” and confirmed that the applicant had the opportunity to seek independent legal advice and that he understood the terms of the termination and release documents he was signing.

8There is no suggestion that the applicant has not received and retained the monetary compensation referred to in the termination letter.

9The applicant asserts that the reason he did not file the Application until June 8, 2009, was because he was weighing the hardship of doing so, and when his financial burdens grew too great, he filed the Application.

10He also states that when he signed the release, he believed he did not have ADHD, a medical condition he was later diagnosed with and which he believes was the reason for the performance-related concerns that resulted in the termination of his employment. The documents he filed with the Tribunal suggest that he received this additional information regarding his medical condition on May 7, 2008.

Delay

11The 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.

12The 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.

13In 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.

14In this case, I cannot find that the delay was incurred in good faith. The applicant’s employment with the respondent was terminated effective March 5, 2008. The applicant believed he had grounds for concern by the time he met with his physician on May 7, 2008. His only explanation for filing a human rights application more than a year after even the later of the two dates is that he was weighing the hardship of pursuing an application and that he filed it when the financial pressures on him grew great enough.

15In the circumstances, I am not convinced that the applicant has provided a reasonable explanation for the delay. I find that the delay was not incurred in good faith and, as a result, it is not necessary for me to consider the respondent’s arguments concerning prejudice or the abuse of process issue.

16The Application is dismissed.