McCredie v. Ontario (Ministry of Finance), 2011 HRTO 1193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John McCredie Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance and Ontario Public Service Employees Union Respondents

DECISION

Adjudicator: Alan G. Smith Date: June 21, 2011 Citation: 2011 HRTO 1193 Indexed as: McCredie v. Ontario (Ministry of Finance)

WRITTEN SUBMISSIONS BY:

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance, Respondent Susan Munn, Counsel

Ontario Public Service Employees Union, Respondent Danny Kastner, Counsel

BACKGROUND

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 25, 2010, which alleged that the respondents discriminated against him because of his disability and subjected him to reprisal with respect to employment.

2In section 7(c) of the Application (“What was the date of the last event?”), the applicant’s representative wrote: “6 March 2006”. The Application indicates that the respondent Ministry terminated the applicant’s employment in March 2006. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), the applicant’s representative wrote: “Please see Schedule ‘A’ attached.” However, the attached Schedule does not explicitly address why the applicant was applying more than one year from the last event.

3On November 3, 2010, the Tribunal Registrar sent the applicant’s representative a letter, which, among other things, requested an explanation why the applicant was applying more than one year after the date of the last event.

4On December 1, 2010, the applicant’s representative sent the Tribunal an amended Schedule “A”, which provided submissions on the timeliness issue. In essence, she stated that the applicant was unable to file his Application in a timely manner because he was suffering from depression.

5However, the submissions did not address the fact that other parts of the Application and its attachments indicated that after the last alleged incident of discrimination, the applicant filed a grievance and participated in a grievance process, filed a claim with the Workplace Safety and Insurance Board (“WSIB”), filed and pursued a complaint pursuant to Section 74 of the Ontario Labour Relations Act, prepared for and passed examinations for Certified Management Accountants (“CMA”) designation, and was employed on a contract basis. As such, it is unclear how the applicant’s depression prevented him from filing a human rights Application in a timely manner, but did not prevent him from pursuing other legal claims and activities during the same time period.

6On February 4, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) in which it indicated that the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) because it was filed more than one year after the last incident of discrimination described in the Application. The Tribunal requested written submissions from the parties with regard to the whether the applicant’s delay in filing his Application was incurred in good faith by providing information about what other legal claims and activities the applicant pursued after the last alleged incident of discrimination, when he pursued those claims and activities, and what the applicant’s medical evidence discloses about his ability to pursue legal claims and other activities.

7On March 4, 2011, the respondent employer and respondent Union both filed submissions in favour of dismissing the Application for being untimely. In correspondence dated April 21, 2011, the Tribunal Registrar directed the applicant’s counsel to file any submissions regarding the delay issue by May 6, 2011. Nothing was received from the applicant.

DECISION

8The Tribunal does not have the general power to inquire into claims of unfairness or wrongdoing outside the parameters prescribed in the Code. The Tribunal’s jurisdiction is limited to dealing with disputes that properly fall under the Code: Fulton-Bell v. Kawartha-Haliburton Children’s Aid Society, 2009 HRTO 1769.

9Section 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.

10The 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.

11In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Good faith is more than just the absence of bad faith. To succeed under s. 34(2) the applicant has to show he acted with all due diligence: Reid v. Ontario March of Dimes, 2009 HRTO 2207.

12Furthermore, the Tribunal has generally dismissed untimely Applications where the applicant was ill or had a disability, but was able to pursue other legal claims or activities at the same time that he claims that he was unable to file a human rights Application: see, for example, Langlois v. Toronto Transit Commission, 2011 HRTO 79 Garaad v. Regional Municipality of Peel Police Services Board, 2010 HRTO 2101 Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339, Doyle v. Canarm, 2009 HRTO 674 and Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110.

13I concur with the employer respondent’s submissions that the applicant has failed to provide the Tribunal with any medical documentation substantiating the applicant’s position that he was unable to file a Tribunal Application during the period March 2006 through October 2010 because of a depression related disability. As the respondent employer notes, the applicant has provided a list of symptoms and diagnoses but with no explanation as to how his medical condition prevented him from filing an Application in a timely manner.

14The applicant has also not provided an explanation, as requested in the CAD, as to how he was able to initiate and pursue the various legal proceedings noted above as well as obtain a CMA designation and work on a contract basis during the 2006-2010 hiatus but was incapable of filing a Tribunal Application.

15Given the absence of evidence that the delay was incurred in good faith, I find that the Application does not satisfy the requirements of section 34 of the Code. Therefore the Tribunal is without jurisdiction to proceed with the Application.

16The Tribunal has held that, if it has not been shown that the delay was incurred in good faith, it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

ORDER

17The Application is dismissed.