Low v. Hanley Corporation (Tim Hortons), 2011 HRTO 1012

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Low

Applicant

-and-

Hanley Corporation (Tim Hortons)

Respondent

DECISION

Adjudicator: Ena Chadha

Date: May 27, 2011

Citation: 2011 HRTO 1012

Indexed as: Low v. Hanley Corporation (Tim Hortons)

WRITTEN SUBMISSIONS

Kevin Low, Applicant ) Jessica S. Michael

Hanely Corporation (Tim Hortons), ) D. Alan Whyte, Counsel

Respondent )

1This Application was filed on April 28, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of disability. The Application indicates that the last incident of discrimination took place on April 23, 2009 when the applicant’s employment was terminated.

2The respondent filed a Response on November 18, 2010 and in the Response requested the Application be dismissed because it was not filed within one year of the last incident of alleged discrimination. The respondent points out that the applicant was dismissed on April 23, 2009, yet the Application was not filed until April 28, 2010.

3In accordance with a Case Assessment Direction, the parties filed written submissions and authorities with respect to the issue of delay.

PARTIES’ SUBMISSIONS

4The applicant submits that the delay was incurred in good faith because his mental health condition precluded him from filing any earlier. The applicant submitted a psychiatric consultation report from the summer of 2008 indicating that the applicant may suffer from a psychiatric disorder. The applicant indicates that following his employment dismissal he enrolled in College and was trying to focus on his education. The applicant contends that, given the nature of his mental disability, he was unable to pursue his rights under the Code, as well as focus his education and therefore was unable to file his Application any earlier. The applicant also submits that the respondent has suffered no prejudice by the delay.

5The respondent submits that the Application is untimely because the Application was filed beyond the Code’s one-year timeline. The respondent argues that the applicant was able to pursue his employment insurance benefits in July 2009 and undertake efforts to attend College. The respondent submits that the applicant has provided an inadequate explanation for his delay in filing the Application.

DECISION

6Section 34 of the Code provides:

(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.

7The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

8Although the delay in filing this Application was only 5 days beyond the limitation period, the Tribunal’s jurisprudence establishes that, notwithstanding that the delay may be brief; the onus is nevertheless on the applicant to demonstrate that the delay in filing the Application was in good faith.

9In seeking to substantiate that the delay was in good faith, the applicant submitted a medical report from the summer of 2008. The applicant asserts that the medical report supports his claim that he “was significantly limited in what he could accomplish”. The medical report confirms that he experienced mental health concerns in 2008; however, the report does not address the applicant’s situation post-termination in 2009. The applicant’s submissions indicate that he was enrolled in College following the termination of his employment. No evidence was provided in support of the applicant’s assertion that he was unable to pursue his legal rights while engaged in his studies.

10Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. While the applicant may well have experienced mental disability concerns before and even after his dismissal, he has not established that he could not have pursued his rights within the timeline mandated by the Code.

11As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317 while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12I do not find the medical report constitutes persuasive evidence that the applicant’s condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion, particularly given the applicant’s pursuit of his employment insurance benefits following his dismissal and enrollment in College.

13Based on the applicant’s submissions, it appears that the applicant chose to focus on his College education and did not pursue his human rights out of concern that filing an application may compromise his education. I do not accept that the applicant’s submissions establish that the applicant met the fairly high onus the Tribunal requires to show that the delay in the filing of an Application was incurred in good faith pursuant to section 34(2) of the Code. Accordingly, the Application, filed over one year later does not meet the requirements of section 34(1).

14In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.