Raehan Umar v. Shad Valley International and Barry Bisson, 2011 HRTO 1945

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raehan Umar

Applicant

-and-

Shad Valley International and Barry Bisson

Respondents

DECISION

Adjudicator: Naomi Overend

Date: October 27, 2011

Indexed as: 2011 HRTO 1945

1The applicant filed this Application on June 13, 2011, alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin, creed and sex, contrary to Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Application concerns the termination of the applicant’s employment with the corporate respondent (“SVI”), which took place on or about August 18, 2009, and his subsequent attempts to have this termination addressed and overturned. The applicant alleges that he was advised that there had been an allegation that he had sexually harassed a participant in the summer program in which he was program manager and faculty member, but that SVI refused to provide him with any details concerning who or what was alleged, or an opportunity to respond.

3On August 15, 2011, the Tribunal issued a Notice of Intent to Dismiss (NOID) asking the applicant for submissions on the issue of delay. The applicant filed submissions in response to the NOID in which he submitted that his Application was not untimely.

4The Tribunal does not have the power to consider claims filed more than one year after the last incident of discrimination, or the 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. Section 34 of the Code, 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.

5As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “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 the Code in a timely manner.

6In response to the NOID, the applicant submitted that following his termination from the program, he sought to meet with the person responsible for his termination, but that this person refused to meet except in circumstances that were unfair to the applicant.

7By September 2009, he had consulted with an employment lawyer, who provided him with advice about how to proceed. She wrote a letter on his behalf to SVI on October 9, 2009, saying that the applicant continued to seek an impartial investigation into the allegations.

8On or about October 30, 2009, the applicant was scheduled to meet with SVI, but learned through his lawyer that SVI was only prepared to read a statement and then speak to him through its lawyer. The applicant attended this meeting, which he felt was unfair and harsh to him, without his lawyer.

9After this he did not pursue anything with SVI until he submitted his “official grievance” to SVI’s Board of Directors on May 13, 2010. The Board of Directors responded on June 11, 2010, via email that it would be taking no further action. The applicant’s final action was to leave a telephone message with the SVI office on June 15, 2010, which was not answered.

10The applicant submits that his attempts to have SVI conduct an impartial investigation into the allegations that led to his termination, which were continuously rebuffed, were ongoing acts of discrimination and harassment and part of a “series of incidents” as that term is used in s. 34(1)(b). That being the case, he submits, his Application was timely, in that he filed on June 13, 2011, two days prior to the expiration of the one-year time limit.

11The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

12The distinction between “continuing effects of an act of alleged discrimination” and “further acts of discrimination” has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto, 2010 HRTO 1495.

13Applying this reasoning to the instant case, the applicant alleges that he was discriminated against on the basis of a number of grounds when SVI terminated his employment with it, rather than conducting a proper and impartial investigation into the allegations against him. His attempts to have SVI re-visit that decision cannot be said to be a repetition of separate acts of discrimination, but simply his attempt to have what he says was the discriminatory action overturned. That is, his attempts to dispute that termination, and SVI’s decision to stand by its original decision, cannot be said to be further acts of discrimination.

14On their face, the facts of his Application could be said to be analogous to an employee who attempts to grieve an employer’s actions under a collective agreement. In those circumstances, the Tribunal has held that the applicant must pursue his or her human rights in a timely manner, even if it means filing an application while the grievance is ongoing, because the steps of the grievance do not constitute separate incidents of discrimination: See Bish v. Canadian Union of Public Employees, 2011 HRTO 221 and Mu v. Cargill Food, 2011 HRTO 846.

15The Tribunal can accept an application that is outside the one-year time limit 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 noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

16The applicant has provided no reasonable explanation for why he did not pursue his rights under the Code in a timely fashion. He sought legal advice nearly two years before he filed his Application. Indeed, his counsel, in her October 9, 2009 letter to SVI said that in the event that her client did not receive “the fair treatment to which he is entitled” at the October 30, 2009 meeting, “he will be placed in a position where he will have no choice but to initiate legal proceedings to pursue the remedies that are available to him.”

17Even if the applicant felt he should attempt to initiate an internal grievance, he was advised by the Board of Directors within the one-year time limit that it would not take action and yet he waited an additional year (and four days) to file his Application.

18Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.

19The Application is accordingly dismissed.