HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard McGhie
Applicant
-and-
Bell Canada and Manulife Financial Disability Management Group
Respondents
DECISION
Adjudicator: Alan G. Smith
Indexed as: McGhie v. Bell Canada
WRITTEN SUBMISSIONS BY:
Richard McGhie, Applicant ) Self-represented
BACKGROUND
1This is an Application filed on September 15, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination based on disability, which culminated in his termination from the employer respondent on February 9, 2009.
2With regard to explaining why the Application was made more than one year after the termination the applicant states in the Application, “I was never told by anyone that I had this recourse of action until recently”.
3On May 3, 2011, the Tribunal issued a “Notice of Intent to Dismiss” (“NOID”) in which it indicated that the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) because, among other things, it was filed more than one year after the last incident of discrimination described in the Application.
4The applicant responded to the NOID on June 2, 2011, stating in part with regard to the timeliness issue:
…The CEP (Union) and Bell Management for a long time were not speaking to one another….At present time the Grievance file is still open information should not prejudice anyone…Even after I aggressively asked the Union counsel representing me what was the company guilty of section what of the Human Rights Code. I had to look it up on the internet…I need something to be done so that no one else goes through such miss treatment again.
DECISION
5The 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.
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.
8In 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.
9The applicant appears to argue that he only became aware of his right to seek redress under the Code until well after the one year limitation period had passed, ie., that his union legal counsel failed to inform him in a timely manner regarding his rights pursuant to the Code. However, the Tribunal has held that ignorance of one’s rights does not, except in the most exceptional of cases, constitute a reasonable explanation for the purposes of s. 34(2) of the Code. See Lutz v. Toronto, 2009 HRTO 1137, Desauliniers v. Canadian Auto Workers, 2009 HRTO 1743 and Hunter v. Vermeer, 2010 HRTO 669. In other words, ignorance of one’s rights may in some circumstances amount to good faith but to succeed the applicant must also establish that he had no reason to make inquiries about his rights. See Cort v. Suncor Energy, 2010 HRTO 853, Simon v. Peel Regional Police Services, 2010 HRTO 433, and Sgro v. Spar Marathon and Roofing Supplies, 2011 HRTO 688.
10Similarly, in some circumstances, it could be reasonable for an applicant to pursue other avenues such as the grievance/arbitration process before resorting to an application under the Code. However, it is not reasonable for an applicant, as in this case, to delay making inquiries about the existence of Code remedies while awaiting the outcome of other processes. See Hall v. Royal Victoria Hospital, 2010 HRTO 1165 and Sgro, above.
11Given 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.
12The 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
13The Application is dismissed.
Dated at Toronto this 21st, day of June, 2011.
“Signed by”
Alan G. Smith
Member