HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephen Biega Applicant
-and-
Management Research & Solutions Inc., MRSI Benchmarking Inc., David Cook, Dan Regan and Lorraine Baudisch Respondents
DECISION
Adjudicator: Faisal Bhabha Date: January 4, 2011 Citation: 2011 HRTO 13 Indexed as: Biega v. Management Research & Solutions
APPEARANCES
Stephen Biega, Applicant (Self-represented)
Management Research & Solutions Inc., Dan Regan, David Cook and Lorraine Baudisch, Respondents (Michael Mazzuca, Counsel)
MRSI Benchmarking Inc., Respondent (Tara Landes, by teleconference)
1This is an Application filed on December 15, 2009, 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 that he suffered discrimination on the basis of his disability, and reprisal. The respondents deny the allegations.
2In an Interim Decision, 2010 HRTO 1728 (dated August 20, 2010), the Tribunal directed that a half-day hearing be scheduled to deal with the respondents’ request that the Application be dismissed because it was filed outside of the one-year limitation period in the Code and that it amounts to an abuse of process, as well as a request to remove the respondent MRSI Benchmarking Inc. (“Benchmarking”) on the basis that it has no relation to the other respondents or to the events that gave rise to the Application.
3An oral hearing was held on November 17, 2010 and the parties made submissions on the preliminary issues. For the reasons that follow, I find that the Application is out of time and that there is no basis to extend the limitation period.
BACKGROUND
4The following facts are based on the documents and oral submissions of the parties.
5The applicant was employed as a regional sales manager with the respondent, Management Research & Solutions Incorporated (“MRSI”) from August 2, 2006 until he was laid off on January 28, 2008.
6On November 14, 2007, the applicant went off work and applied for short-term disability (“STD”) benefits. The respondent MRSI takes the position that the applicant failed to provide supporting documentation to establish that his absence was a bona fide disability-related absence. The applicant’s STD application was denied twice by a third-party insurer, though it was eventually approved, retroactive to November 2007, in April 2008.
7The applicant made no requests for accommodation and did not attempt to return to work.
8On January 18, 2008, the applicant was given a Notice of Layoff, effective January 28, 2008. The reason cited for the layoff was “economic constraints” and “significant downsizing”. The Notice further stated: “This layoff is unrelated to your current sick leave, however we do hope and plan to recall people as soon as possible, and will require further medical documentation if you are unable to work upon recall.”
9The applicant was never recalled to work.
10In September 2008, the applicant commenced a civil proceeding for wrongful/constructive dismissal against MRSI and David Cook, seeking damages for emotional or mental distress arising out of the course of his employment and subsequent layoff. An amended Statement of Claim sought to add MRSI Benchmarking as a party, though it is unclear whether the amended pleading was ever filed with the Court.
11The respondent MRSI takes the position that it only learned upon receipt of the Statement of Claim that the applicant considered his employment to be terminated. Up to that point, MRSI considered the applicant to be an employee on sick leave awaiting recall.
12In December 2008 the respondent MRSI and David Cook filed a Statement of Defence. It appears that the civil proceeding did not advance any further and has now been deemed to have been abandoned.
ANALYSIS AND DECISION
13Section 34 of the Code states:
34.(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.
14The respondents take the position that the Application was brought beyond the statutory one-year limitation period, and that the applicant has not demonstrated that the delay was incurred in good faith. They point to the fact that the applicant was represented by competent counsel from at least November 2007, who corresponded with the respondent MRSI with respect to the applicant’s employment issues, and who represented the applicant in his civil proceeding.
15As early as April 2008, the applicant’s counsel made allegations of unfair treatment and questioned the legitimacy of the respondent’s layoff given the applicant’s medical condition. While neither counsel’s correspondence nor the legal pleadings specifically refer to an allegation of discrimination, the respondents argued that the facts and concerns underlying the allegations in the Application are the same as those relied upon in the civil claim.
16The applicant argued, first, that the Application was not filed late. He submitted that the last discriminatory incident occurred on April 8, 2009 when he received the respondent MRSI’s Amended Statement of Defence. This, according to the applicant, confirmed the respondent’s reasons for laying off the applicant. In his view, to allege discrimination prior to this point would have amounted to an accusation without “certain knowledge” that his rights were violated.
17In the alternative, the applicant argued that even if the Application was filed late, the delay was incurred in good faith. He submitted that he had no knowledge of anti-discrimination legislation until his counsel mentioned it to him on September 15, 2009. He argued that as a result of his disability, he was unable to function properly, was suffering from depression, anxiety and insomnia, and relied entirely on his counsel to advise him and take appropriate legal action on his behalf. He cited Lutz v. Toronto (City), 2009 HRTO 1137 in support of the proposition that the test for good faith requires that people act honestly and without wilful blindness. The applicant submitted that he met this test.
18I find as a factual matter that the Application was filed 11 months late. The last allegedly discriminatory incident was the applicant’s layoff on January 28, 2008. Information that he learned about the respondent’s reasons for the layoff as a result of the filing of legal pleadings does not amount to a further incident. See Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23.
19The question, therefore, is whether the applicant has established that the delay in filing the Application was incurred in good faith. In order to satisfy this requirement, the applicant must show something more than simply an absence of bad faith. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24. In Klein, supra, the Tribunal held that an applicant cannot justify a delay on the basis that he only later discovered evidence that would assist in proving the allegation of discrimination. In Lutz, supra, and many subsequent decisions, the Tribunal has held that it is not sufficient for an applicant to say that he was not aware of his rights.
20The applicant stated at the hearing that when he learned about his layoff, he was upset. He felt it was unfair because he believed he had been a good performer in his position and suspected that his disability might have had something to do with the layoff. He admitted that he “gave [MRSI] the benefit of the doubt” based on the respondent Regan’s express assurances that the layoff had nothing to do with his sick leave. The fact that the applicant later changed his mind and resurrected his suspicions about the respondent MRSI’s motives does not support a finding that the delay was incurred in good faith.
21Moreover, the applicant had counsel throughout the delay period. It is appropriate to infer from that fact that the applicant had access to relevant information about available legal options. I do not accept as credible the applicant’s claim that he did not have knowledge of the Code or of the possibility of legal remedies for discrimination until September 2009, nearly one year after he retained counsel.
22In view of my finding that the delay was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. It is also unnecessary for me to consider the respondents’ additional requests.
ORDER
23The Application is dismissed.
Dated at Toronto, this 4th day of January, 2011.
”signed by”_________
Faisal Bhabha Vice-chair