HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Scott MacGregor
Applicant
- and-
Canadian Tire Associate Store
Respondents
decision
Adjudicator: Ian R. Mackenzie
Indexed as: MacGregor v. Canadian Tire Associate Store
wRITTEN SUBMISSIONS
Scott MacGregor, Applicant ) Kevin Hahn, Representative
1Scott MacGregor has 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. The applicant alleges that his employment was terminated on May 14, 2010 because of a failure of the respondent to accommodate a disability that resulted from a workplace injury. The Application was filed on September 2, 2011.
2On September 14, 2011, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application because of delay. In the NOID, the Tribunal noted that there was not a sufficient explanation of how the delay was incurred in good faith and why the applicant believed no substantial prejudice will result to the respondent (as required by subsection 34(1) of the Code). The applicant was referred to Thomas v. Toronto Transit Commission, 2009 HRTO 1582.
3In the Application, the applicant stated that the reason for the delay was because he did not know what his rights were. In submissions in response to the NOID, the applicant stated that he was not aware of his rights under the Code. He stated that he was involved in a proceeding before the Workplace Safety Insurance Board and was advised by an Appeals Resolution Officer that he might have a claim against his former employer. He stated that he was advised of his rights under the Code around August 18, 2011.
Decision
4For the reasons which follow I dismiss the Application.
[5] Section 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.
[6] Subsection 34(1) of the Code allows the Tribunal to extend the one-year time limit for the filing of an application 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 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.” 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 Code in a timely manner.
7Ignorance of one’s rights is not a good faith reason for a delay in filing an application. See Lutz v. Toronto (City), 2009 HRTO 1137. 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.
8I 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.
9In light of the fact 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. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.
10Accordingly, the Application is dismissed.
Dated at Toronto, this 13th day of October, 2011.
”signed by”____________
Ian R. Mackenzie
Vice-chair