HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julia Valenzisi
Applicant
-and-
Maple Leaf Sports & Entertainment
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Valenzisi v. Maple Leaf Sports & Entertainment
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 June 29, 2011 alleging discrimination in employment on the basis on sex and sexual solicitation and advances.
2A Notice of Intent to Dismiss (“NOID”) was issued on August 29, 2011 indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination.
Background
3The applicant was employed with the respondent and the terms and conditions of her employment were governed by a collective agreement between the respondent and the Teamsters Union, Local 847 (the “Union”). The applicant asserts in the Application that she was employed with the respondent for approximately four years until her termination from employment on February 9, 2010 based on the deemed termination provisions of the collective agreement. She alleges that the reason for her absences and inability to work was related to a pregnancy related illness.
4On February 10, 2010, the Union filed a grievance on behalf of the applicant with respect to her termination from employment.
5On March 24, 2010, the president of the Union advised the applicant that her grievance was being withdrawn by the Union because it had obtained a legal opinion that her grievance had no reasonable probability of success at arbitration based on a review of the evidence.
6On August 17, 2010, the applicant filed an application at the Ontario Labour Relations Board (the “OLRB”), pursuant to section 74 on the Labour Relations Act, 1995 (the “OLRB application”), against the Union alleging a breach of the Union’s duty of fair representation and as a remedy seeks to have her grievance referred to arbitration. The OLRB application was delivered to the Union by the applicant on August 30, 2010, and was filed with the OLRB on September 1, 2010.
7In the Application filed with the Tribunal on June 29, 2011 the applicant asserts in section 7 of the Application that the last incident of discrimination occurred on August 30, 2010. However, it is apparent that the narrative set out in the Application does not support this assertion. The last incident of alleged discrimination is the date of termination February 9, 2010 and all other alleged acts of discrimination pre-date this date.
8The applicant filed submissions with respect to the NOID in which she alleges, amongst other things, that a meeting at the OLRB was purposefully delayed by the respondent and the Union beyond the “one year mark”. She also states that her termination from employment caused her great stress and that she did not know that she had to file her Application within one-year.
DELAY
9Section 34 states, in part:
(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.
10As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” It is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.
11I find that the last alleged incident of discrimination occurred on February 9, 2010, and not on August 30, 2010 as alleged in the Application which appears to be the date on which she served the Union with the OLRB application. Therefore, I find that the Application has been filed over four months late. Therefore, the Tribunal must consider whether the delay was incurred in good faith.
12There was nothing to prevent the applicant from filing a separate human rights application even while taking steps through her OLRB application to seek to revive the grievance. I find that the applicant has been aware since at least March 2010 that the Union would not be referring her grievance to arbitration. The applicant did not file her Application with the Tribunal until approximately 15 months after the Union’s decision. Although the applicant has stated that shortly after her termination from employment she was stressed and depressed, there is no evidence to support that she was incapable of filing this Application within the time-limit specified by the Code.
13Even assuming that her termination from employment caused her great stress, this is not in itself a reasonable explanation for her delay. Further, the applicant was able to commence a legal proceeding against the Union, the OLRB application, in a diligent fashion which demonstrates that the applicant was capable of pursuing her legal rights at the relevant time.
14In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:
Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.”
15In this case, the applicant has not shown that she had no reason to make enquiries about her rights - enquiries which would have made her aware that she had to file her Application within one year of the last incident of alleged discrimination. In these circumstances, the fact that she may not have been aware of the time limit under the Code is not a reasonable explanation and does not demonstrate that the delay was incurred in good faith.
16The applicant’s submissions as a whole do not support her position that the delay was incurred in good faith. It is not necessary, therefore, to address the issue of prejudice.
17For the reasons set out above, I find that the Tribunal is without jurisdiction to deal with this Application. Accordingly, the Application is dismissed.
Dated at Toronto, this 28^th^ day of September, 2011.
”signed by”_____________________
Geneviève Debané
Vice-chair