Courtney v. Faurecia Automotive Seating Canada Ltd., 2011 HRTO 1855

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roselyn Courtney

Applicant

-and-

Faurecia Automotive Seating Canada Ltd., Shiela Mahoon George Golodenuff

Respondents

DECISION

Adjudicator: Ena Chadha

Date: October 13, 2011

Citation: 2011 HRTO 1855

Indexed as: Courtney v. Faurecia Automotive Seating Canada Ltd.

1This Interim Decision deals with an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on May 10, 2011, and alleges discrimination with respect to employment on the basis of disability. While the Application Form 1 indicates that the last alleged discriminatory incident was June 7, 2010, the applicant’s narrative indicates that her employment was terminated in 2008. The applicant alleges that she only received her Record of Employment in 2010.

2The respondents filed a Response on June 24, 2011, denying the allegations of discrimination. The respondents allege that the Application is out of time because the applicant was dismissed on February 26, 2008. The respondents note that the applicant filed a grievance on March 10, 2008, with respect to her dismissal.

3On July 12, 2011, the applicant’s union, United Steelworkers, filed a request to intervene. The union confirms that the applicant’s employment was terminated on February 26, 2008, and that the applicant had no contact with the union since 2008 after the parties engaged in unsuccessful grievance settlement discussions. The union indicates that, almost two years after its last communication, the applicant contacted the union in May 2010 seeking information about the status of her grievance. The union requests to intervene in the Application to defend against any allegations made against it.

4By way of letter dated August 26, 2011, the Tribunal invited the parties to file submissions with respect to the timeliness of the Application. The respondents filed submissions on September 28, 2011. The applicant did not file submissions.

ANALYSIS

5Section 34 of the Code states:

(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.

6The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

7The Tribunal’s jurisprudence establishes that the onus is on the applicant to demonstrate that the delay in filing the Application was in good faith. In determining the issue of good faith, factors for consideration include whether Code-related reasons impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.

8The respondents submit that the Application is untimely because the Application was filed beyond the Code’s one-year timeline. The respondents argue that the delay was not minimal in that the alleged events date more than two years before the Application was filed.

9Based on the information before the Tribunal, it appears that the last incident of discrimination alleged in the Application was the termination of employment which occurred in February 2008, over two years prior to the filing of the Application. The applicant has not demonstrated why she could not meet the Code deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code.

10I do not accept the applicant’s contention that the alleged discrimination she experienced when her employment was terminated in 2008 continued until, or reoccurred in 2010, simply because she did not receive her Record of Employment until 2010. Although the applicant may not have received her Record of Employment in 2008, the applicant acknowledges that she was informed of her dismissal in 2008 and received Minutes of Settlement and a Release in 2008 regarding the dismissal.

11I find that the applicant’s explanation that she was attempting to secure her Record of Employment from 2008 to 2010 is not satisfactory, particularly in light of the fact that the applicant also pursued a grievance over the dismissal in 2008. The applicant has not established that she could not have pursued her rights within the timeline mandated by the Code. As such, the Application, filed over one year later, does not satisfy the requirements of section 34(1).

12On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

13Accordingly, the Application is dismissed.