Chiu v. Long, 2010 HRTO 910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Chiu

Applicant

-and-

Sean Long

Respondent

DECISION

Adjudicator: Alison Renton

Date: April 27, 2010

Citation: 2010 HRTO 910

Indexed as: Chiu v. Long

written submissions

William Chiu, Applicant ) On his own behalf

Sean Long, Respondent ) Geri Sanson 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 the areas of goods, services and facilities and membership in a vocational association, on the grounds of race, colour, ancestry, place of origin and ethnic origin.

2The applicant originally named the personal respondent and a corporation as respondents. The applicant and the corporation have resolved the Application as between them and the Tribunal ordered, on September 8, 2009, that the Application was finally disposed of as between the applicant and the corporation. The Tribunal further ordered that the Application would proceed as between the applicant and respondent.

3The applicant alleges that he was subjected to discriminatory conduct by the respondent when they attended a conference on August 7, 2007 (“the conference”). The applicant filed his Application on January 18, 2009. The respondent was a presenter at the conference, but not an employee of the corporation.

4The Response submits that the Application was not filed in a timely manner having been filed approximately 18 months after August 7, 2008. The applicant explains that he was trying to resolve the matter with the corporation and that the corporation’s final communication to him was dated August 25, 2008. The applicant takes the position that the one-year limitation period runs from that date.

5In an email dated February 9, 2010 the respondents requested that the Tribunal determine the delay issue as a preliminary matter. The Tribunal issued an Interim Decision, dated February 25, 2010, 2010 HRTO 445, setting a timetable for the parties to provide written submissions with respect to the delay issue. The Tribunal stated that upon receipt of the parties’ submissions, the Tribunal would determine the delay issue and/or take such other steps as may be necessary for the fair, just and expeditious processing of the Application.

6The applicant filed submissions dated March 4, 2010 and the respondent filed submissions dated March 25, 2010. A Case Assessment Direction (“CAD”), dated April 7, 2010, was issued directing the applicant to the Tribunal’s decisions on delay and seeking his submissions on the issue of good faith. The applicant filed further submissions in response to the CAD.

DECISION

7Section 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 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.

8In 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. The Tribunal has recognized this is a fairly high onus. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

9The applicant submits that he did not know that the respondent was not an employee of the corporation until August 25, 2008. He further submits that it took him “an extensive amount of time to study” before filing his Application.

10The allegations in the Application are clearly about the respondent’s alleged conduct at a conference held in August 2007. The subsequent communications between the applicant and the corporation were about the applicant’s concerns with the respondent’s alleged conduct and the corporation’s investigation into those concerns. Therefore, the limitation period commences in August 2007 and not August 2008 as submitted by the applicant.

11While the applicant was communicating with the corporation after August 2007 to try to resolve the issues that he had with the respondent’s conduct, efforts 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 Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

12The Tribunal has recognized that there is a difference between an applicant who later uncovers information that discloses a possible violation of the Code and an applicant who later finds evidence in support of his/her allegations. See Klein v. Toronto Zionist Council, 2009 HRTO 241. While the applicant in this case asserts that he did not know that the respondent was not an employee of the corporation until August 2008, I find that the applicant was, as of August 2007, aware that the respondent possibly violated the Code. Further, having reviewed the corporation’s correspondence to the applicant in October 2007 which was attached to the applicant’s submissions, I find that the corporation used language to suggest that the respondent was not its employee, although I recognize it did not directly say this.

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.