Lavoie v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1018

Allan Lavoie

Applicant

and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services – OPP

and George Borberly

Respondents

DECISION

Adjudicator: Ena Chadha

Date: May 27, 2011

Citation: 2011 HRTO 1018

Indexed as: Lavoie v. Ontario (Community Safety and Correctional Services)

1This Decision deals with an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on March 11, 2011 and alleges discrimination with respect to employment on the basis of disability and age. The Application indicates that the last alleged discriminatory incident was July 3, 2009, when the appeal process regarding his workplace injury was ultimately denied.

2On March 22, 2011, the Tribunal Registrar sent a Notice of Intent to Dismiss to the applicant which stated that, pursuant to section 34 of the Code, the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

APPLICANT’S SUBMISSIONS

3The applicant filed written submissions April 8, 2011 and enclosed various medical reports. Based on the Application narrative, it appears that the applicant’s employment ended in and around 2006. The applicant alleges that at that time he inquired with the Ontario Human Rights Commission about filing a human rights complaint. He alleges that he was advised that he could not file a complaint while his Workplace Safety and Insurance Board (“WSIB”) application was underway. The applicant indicates the WSIB process concluded in July 2009 and the deadline for filing his Application runs from this time period.

4The applicant submits that the delay in filing his Application from July 2009 until March 2011 was incurred in good faith because he did not have the mental fortitude to start the Tribunal’s application process within the limitation period due to post-traumatic stress. The applicant alleges that he suffered a severe depression. The applicant alleges that he eventually received medical treatment and his medication was adjusted so that his condition improved into March 2011 when he felt “capable of going forward”.

DECISION

5Section 34 of the Code states:

(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 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.

7The Tribunal’s jurisprudence establishes that the onus is on the applicant to demonstrate that the delay in filing the Application was in good faith. In determining the issue of good faith, factors for consideration include 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.

8In seeking to substantiate that the delay was in good faith, the applicant submitted medical reports from 2001-2005. The applicant asserts that the medical documentation supports his claim that he was psychologically unable to proceed with filing his application any earlier. While the 2001-2005 medical documentation confirms that at that time the applicant experienced psychological restrictions flowing from post-traumatic stress, no medical documentation was provided post-2005.

9Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the Code deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. Although the applicant may well have experienced concerns with respect to his mental disability before and even after the cessation of his employment in 2006, he has not established that he could not have pursued his rights within the timeline mandated by the Code following the events in 2006 or even in 2009.

10As 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.

11I do not find the medical documentation from 2001-2005 constitutes persuasive evidence that the applicant’s condition prevented him from pursuing his rights under the Code in a more timely fashion, particularly given the applicant’s pursuit of his WSIB claim.

12Based on the applicant’s submissions, it appears that the applicant pursued his WSIB claim and that appeal process. I do not find that the applicant’s submissions meet 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 late does not satisfy the requirements of section 34(1).

13In 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.

14Accordingly, the Application is dismissed.

Dated at Toronto, this 27^th^, day of May, 2011.

”Signed by”

Ena Chadha

Vice-chair