Mahesparan v. Kee, 2011 HRTO 1035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kothanayake Mahesparan

Applicant

-and-

Debbie Kee, Kevin Hui and Teddianne Beagan

Respondents

-and-

Canadian Union of Public Employees Local 1356

Intervenor

DECISION

Adjudicator: Naomi Overend

Date: May 31, 2011

Citation: 2011 HRTO 1035

Indexed as: Mahesparan v. Kee

1The applicant filed an Application on January 19, 2009, alleging discrimination on the basis of race and colour in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). Although many of the events about which she complained have no dates attached to them, they appear to have all occurred by July 2007 when she complained to the Centre for Human Rights at York University (her employer).

2The applicant, who is a member of the Canadian Union of Public Employees, Local 1356 (“CUPE”), also filed a number of grievances with respect to the allegations in her Application. CUPE sought to intervene after being given notice of the Application, and was granted intervenor status.

3The original Application named three individuals – two supervisors and a co-worker – as respondents. Counsel for York University filed Responses on behalf of the two supervisors. These Responses requested that the Application be dismissed on the basis that the substance of the Application had been dealt with in other proceedings, namely the above-referenced grievances and the internal complaint to the Centre for Human Rights.

4On June 15, 2010, the Applicant brought the first of two Requests for Order during Proceedings (Form 10) in which she asked to amend her Application to include two incidents occurring in January through March 2010. This was opposed by her two supervisors in their Response to the Request for Order (Form 11), saying that there was too large a gap in time and no nexus between these incidents and the incidents that form the basis of her original Application.

5The applicant brought her second Request on October 28, 2010 asking to amend her Application to add two organizational respondents, one of which was York University, and seeking to amend her requested remedy. A Form 11 Response was filed on behalf of York University and the two supervisors opposing this request and reiterating the earlier request to have the Application dismissed under s. 45.1 or as an abuse of process given that the subject matter had been resolved as grievances.

6The Tribunal reviewed this material and ordered an in-person hearing to deal with the outstanding procedural matters. The parties were informed via a Case Assessment Direction, dated January 5, 2011, that the Tribunal would address the issue of delay, the 45.1 issue and the applicant’s outstanding Requests for Order at this hearing.

Request to Amend Application

7The applicant seeks to amend her Application to include allegations concerning incidents that are alleged to have occurred on January 29, 2010 between the applicant and another co-worker, and on February 22, 2010 and March 30, 2010 between the applicant and another supervisor. Neither the co-worker nor supervisor is named in the original Application.

8The only thing that connects these allegations with the original Application is the allegation that they were not responded to properly by management because the applicant had filed the original Application. I concur with the respondents’ submission that the significant gap in time (over 30 months) and the absence of a nexus in allegations between the original Application and the new allegations make it inappropriate to make these allegations part of this Application.

9The applicant’s Request to amend is therefore denied.

10It is not necessary to deal with the remaining request to add respondents and alter the remedy in light of the rulings below.

Delay

11Section 34 states, in part:

(1) If a person believes that any of her 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.

12As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

13The applicant’s explanation for the delay is that she filed a complaint with the Centre for Human Rights in July 2007 (shortly after the settlement of her earlier grievances), and did not receive the report from that entity until January 2009. She filed her Application with this Tribunal shortly thereafter.

14Persons who feel their rights had been violated are expected to file within the time limits specified in the Code (at the time, the Code specified that complaints were to be filed with the Ontario Human Rights Commission within six months of the events), even if it means that they are seeking redress from two different entities. As indicated by the Tribunal in Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 23:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer considerations of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation in filing an Application. [Emphasis added]

15The applicant does not suggest that she was unaware of her rights, nor would any of her actions at the time suggest this. It would appear that the only reason for the delay is her decision to await the outcome of one avenue of redress. To use the words of Miller, she failed to “act with all due diligence.”

16The applicant has, accordingly, provided no information on which the Tribunal could conclude that the delay was incurred in good faith. Given the absence of evidence that the 18-month delay was incurred in good faith, it is unnecessary to deal with the issue of potential prejudice to the respondent.

17The Tribunal is without jurisdiction to deal with this Application. The Application is, accordingly, dismissed.

Section 45.1

18With respect to the assertion that the subject matter of the Application was already addressed in multiple grievances, s. 45.1 of the Code states:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

19I would note parenthetically that both the applicant’s employer and her union agree that the subject matter of her Application was the subject matter of several grievances, which were settled. The applicant asserts that she was coerced into signing these settlements. It is not, however, necessary to deal with the request to dismiss under this section of the Code, given the dismissal for delay.