James Godfrey v. The Co-operators Group Limited, Co-operators General Insurance and Co-operators Life Insurance Company, 2011 HRTO 187

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Godfrey

Applicant

-and-

The Co-operators Group Limited, Co-operators General Insurance and Co-operators Life Insurance Company

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: January 26, 2011

Citation: 2011 HRTO 187

Indexed as: Godfrey v. Co-operators Group

WRITTEN SUBMISSIONS BY

James Godfrey, Applicant ) Self-represented

The Co-operators Group Limited, Co-operators ) General Insurance and Co-operators ) Ralph Nero, Counsel Life Insurance Company, Respondents )

Decision

1This Decision deals with an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges that the applicant was discriminated against in his employment on the basis of sex, age, association with a person identified by a protected ground and reprisal or threat of reprisal.

2The applicant was an insurance agent for the respondents. He complains that he was offended when, during the course of business, he received an email from his district manager mocking an 86-year-old woman and her experience with her bank. The offensive email was allegedly sent to the applicant on September 25, 2009. The Application was filed November 18, 2010, more than 14 months later.

3The respondents filed a full Response and a Request for Order During Proceedings which raised a number of issues about the Application, including whether it had been filed in a timely way. The applicant filed a Response to the Request for Order During Proceedings.

4Section 34 of the Code provides:

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.

5The respondents ask that the Tribunal dismiss the Application because it was not brought within one year of the incident to which the Application relates.

6It would appear that the applicant complained about the offensive email to the Financial Services Commission of Ontario ("FSCO"), the body that reviews the practices of insurance companies to ensure that they comply with applicable the statutes and regulations. By letter dated November 10, 2009, FSCO advised the applicant:

The sending of the type of e-mails you refer to does not fall with the purview of the legislation. You may wish to pursue this issue with the Ontario Human rights Commission.

7In his response to the Request for Order, the applicant wrote:

I submitted the Application (i.e. the Human Rights Application) when the body regulating insurance companies in Ontario, FSCO, wrote me on November 10, 2010 and referred me to the OHRC. Had FSCO written sooner, the Application would have been dated sooner.

8In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (CanLlI), the Tribunal discussed what an applicant must show to establish that a delay in filing an application was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

9I acknowledge that the applicant may have been trying to resolve his complaint in other ways; however, it is not reasonable for an applicant to delay making inquiries about the availability of a remedy under the Code or the existence of limitation periods to file an application under the Code while awaiting the outcome of other processes: Hall v. Royal Victoria Hospital, 2010 HRTO 1165

10The applicant's suggestion that he was ignorant of the Tribunal's process and could not have filed his Application until referred to the Tribunal by FSCO is not, in my view, a delay incurred in "good faith". Ignorance of one's rights only constitutes "good faith" in very exceptional circumstances, none of which, in my view, exists in this case: Hunter v. Vermeer, 2010 HRTO 669.

11The applicant is a sophisticated businessperson who was earning a significant annual income through his contractual engagement with the respondents. The applicant had both the resources and ability to determine the proper course for handling any alleged human rights concerns in a timely manner. In particular, as evidenced by the applicant's correspondence with the respondents, he had access to legal counsel with whom he regularly consulted regarding various disputes with the respondents.

12In all these circumstances, I am not satisfied that the delay in filing his Application was incurred good faith within the meaning of section 34(2) of the Code.

13For these reasons, the Application is dismissed.