Bilotta v. George Weston Bakeries Limited, 2011 HRTO 1516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pasquale Bilotta Applicant

-and-

George Weston Bakeries Limited Respondent

DECISION

Adjudicator: Naomi Overend Date: August 29, 2011 Citation: 2011 HRTO 1516 Indexed as: Bilotta v. George Weston Bakeries Limited

1This Decision deals with the request brought by the respondent that the Application be dismissed for lack of jurisdiction on the basis of delay.

BACKGROUND FACTS

2The applicant worked as an employee with the respondent company. In 2001 he sustained a workplace injury. There were attempts to accommodate the applicant in other work, but he went on sick leave in 2004 (his last day of work for the respondent was February 12, 2004) and then retired from the company on May 1, 2011.

3The applicant retained a paralegal to represent him with respect to proceedings under the Workplace Safety and Insurance Act ("WSIA"). This representative also wrote to the respondent to demand payment from the company on April 22 and May 25, 2009. The second of the two letters references a possible application to the Ontario Human Rights Commission, although from the context on the letter, it would appear that the representative was referring to an application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

4In fact, this Application was not filed until April 15, 2011, more than seven years after the applicant's last day of work with the respondent.

Decision and analysis

5Section 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.

6As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, "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 he did not pursue his rights under the Code in a timely manner.

Was there delay?

7In section 7 of his Application, the applicant indicates that the date of the last event was March 18, 2011. The only relevant event occurring on this day was that the applicant's representative wrote to the respondent asking for a response to an earlier communication requesting the respondent's position on a termination/severance offer. By suggesting that this was the last event of discrimination, the applicant initially took the position that his Application was timely.

8The respondent takes the position that the last date of any alleged discrimination occurred in February 2004 the last day on which the applicant worked for the respondent. It submits that any subsequent attempts to enforce the applicant's rights are not ongoing acts of discrimination.

9The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a "continuing contravention" applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a "continuing contravention", there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

10The distinction between "continuing effects of an act of alleged discrimination" and "further acts of discrimination" has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto, 2010 HRTO 1495.

11On the face of the facts in this instant case, the applicant continued not to work for the respondent subsequent to February 2004 until his retirement this year. There is no evidence that he requested to come back to work and sought out further accommodations following his last day. Whatever consequences attended on him not being at work were manifest as of February 2004. His attempts to seek compensation following that date (and the respondent's resistance to those attempts) cannot be said to be further acts of discrimination.

12The fact that his Application was untimely appears to be acknowledged by the applicant in his submissions found in his Response to the Request for Order (Form 11). In his Form 11, the applicant focuses on whether the delay was incurred in good faith.

Was the delay incurred in good faith?

13The Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 to determine that a delay in pursuing one's Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

14The applicant submits that the delay was incurred in good faith for the following reasons:

• The applicant suffered from a myriad of health problems that prevented him from pursuing his rights under the Code.
• The applicant's union had undertaken a grievance on his behalf, which included the discrimination allegations, but discontinued this grievance in May 2010. The applicant believed the union was actively advocating on his behalf and, therefore, had no reason to make inquiries about protecting his rights under the Code.

15With respect to the latter argument, the applicant submits that upon learning that his union was not pursuing his grievance "he immediately instructed his representative to enquire into the matter." On the most favourable version of the facts (i.e., that presented by the applicant), the applicant's representative made one phone call to the respondent in June 2010, and then did not follow this up until February 17, 2011 with an email to the respondent. This does not indicate that the applicant or his representative were acting with anything remotely resembling "due diligence."

16In any event, this Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There was nothing to prevent the applicant from filing a separate human rights Application even while pursuing his grievance.

17Moreover, the suggestion that the applicant had no reason to make inquiries about his rights while this other action was being pursued is belied by the fact that in May 2009, a full year before the applicant was advised his grievance was being abandoned, his representative wrote the following to the respondent:

We would appreciate a response to within two weeks and in the event that we do not receive a formal reply, we have been instructed by our client to comment the application for Severance/Termination pay under The Employment Standards Act 2000 and/or the Ontario Human Rights Commission [sic].

18Numerous medical reports were appended to the applicant's submissions in support of the proposition that the applicant's health precluded him from proceeding with an application to this Tribunal. These medical reports indicate that the applicant was, indeed, suffering from a plethora of medical conditions, but not one of them states that these medical conditions prevented the applicant from proceeding with what would have been at the time a complaint to the Ontario Human Rights Commission (and more recently, an application to this Tribunal).

19Moreover, on the face of the facts, the applicant was pursuing several requests for compensation under the WSIA during the relevant time frame and had retained a representative to send demand letters to the respondent as early as early 2009. Any medical evidence submitted would have to explain why the applicant was able to take these steps, but not file either a complaint or an Application. No such evidence was submitted.

20Taken as a whole, the evidence does not support the applicant's position that the delay was incurred in good faith. It is not necessary, therefore, to address the issue of prejudice.

21The Tribunal is without jurisdiction to deal with this Application. The Application is accordingly dismissed.