Winston v. University Health Network, 2011 HRTO 1648

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angelo Winston Applicant

-and-

University Health Network, Rita Soares, Tom Girad, Mitsy Lavoie and Mirec Bailey Respondents

DECISION

Adjudicator: Ian R. Mackenzie Date: September 6, 2011 Citation: 2011 HRTO 1648 Indexed as: Winston v. University Health Network

WRITTEN SUBMISSIONS

Angelo Winston, Applicant ) Cecil Norman, Representative

1Angelo Winston filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability and reprisal or threat of reprisal.

2On July 12, 2011, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because of delay. The Application refers to alleged incidents of discrimination between July and September of 2008; it was filed on August 25, 2010. The HRTO does not have the power to consider claims filed more than one year after the last incident of discrimination or last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay (subsection 34(1) of the Code).

3The NOID referred the applicant to the following cases on delay: Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143; Baisa v. Skills for Change, 2010 HRTO 1621; and Thomas v. Toronto Transit Commission, 2009 HRTO 1582.

4In his submissions, the applicant agreed that the last incident of discrimination occurred more than one year after the filing of the Application.

5The applicant’s employment was terminated on September 10, 2008. He filed a grievance and was represented by his union. He submitted that the grievance process (including arbitration) did not deal with human rights issues. He also submitted that he had been told by the union steward that the union was dealing with all of the issues, including human rights. The applicant also stated that he was not aware that the alleged discriminatory action was in contravention of the Code at the time that it occurred. He states that he only became aware of the possibility of a discriminatory practice when the union steward directed him to the HRTO on March 11, 2010.

6The applicant submitted that he had no reason to make any inquiries about enforcing his rights under the Code until the union advised him in March of 2010 to file an application. He also submitted that he did not pursue his rights under the Code before March of 2010 because he did not know that the Code applied in his circumstances until that time.

7The applicant also submitted that there was no actual prejudice to the respondents because of the delay.

8In the alternative, the applicant submitted that the HRTO has the discretion to proceed with an application “even where it is not satisfied that the delay was incurred in good faith, or that no substantial prejudice will result.”

Decision

9For the reasons set out here, I have dismissed the Application for delay.

10I will first address the applicant’s alternative argument that the Tribunal has the discretion to proceed with an application in the absence of a finding that a delay was incurred in good faith. Applications filed more than a year after the alleged discrimination are barred by the Code, unless the Tribunal concludes that the delay was incurred in good faith and there is no substantial prejudice to the respondents. The scope of the Tribunal’s ability to relieve against delay is prescribed by statute. Accordingly, there is no discretion to allow applications to be mediated or heard in the absence of a “good faith” reason for the delay.

11In this case, the applicant first alleges that he was advised that the grievance process was addressing his human rights concerns and, second, that he was not aware of his rights under the Code until the completion of the grievance process. It is clear that he must have turned his mind to the alleged discriminatory action of his employer at the time that he filed his grievance. There is no other explanation as to why he thought that the union was handling his human rights concerns within the grievance process.

12The applicant suggests that the grievance process did not deal with his human rights concerns. A copy of the grievance or its outcome was not provided. Waiting for another legal proceeding to conclude before pursuing one’s rights under the Code is not a good faith reason for delay in filing an application: see Mu v. Cargill Foods, 2011 HRTO 846, at paragraph 42. The applicant has provided no compelling reason for not filing an application within the one-year period and applying for a deferral pending the outcome of the grievance process.

13In addition, ignorance of the law is not a good faith reason for a delay in the initiation of a human rights application: Lutz v. Toronto (City), 2009 HRTO 1137. Given that the applicant says he thought his union was addressing his human rights concerns in the grievance process, I cannot conclude that he was not aware of the alleged human rights aspects of his termination of employment. In this case, the applicant made no inquiries about options for pursuing his rights under the Code. As noted in Lutz, this is not sufficient to meet the test of a delay in good faith.

14I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code.

15In light of the fact that I have determined that the delay was not incurred in good faith, it is not necessary to make the further determination as to whether anyone has been substantially prejudiced by the delay: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

16Accordingly, the Application is dismissed.