Pelletier v. Nortrax Canada Inc., 2011 HRTO 1968

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nelson Pelletier

Applicant

-and-

Nortrax Canada Inc.

Respondent

DECISION

Adjudicator: Ena Chadha

Date: October 31, 2011

Citation: 2011 HRTO 1968

Indexed as: Pelletier v. Nortrax Canada

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on April 5, 2011, alleging discrimination and reprisal with respect to employment on the basis of race and disability. The applicant alleges that the respondent failed to provide him with appropriate workplace accommodation of his disability. The last alleged discriminatory incident was in 2008, when the applicant’s employment ended because of the lack of modified work.

2By way of Interim Decision 2011 HRTO 1495, dated August 11, 2011, the Tribunal ordered the Application be delivered to the respondent. The respondent was directed to file, along with its Response, written submissions on whether the delay in the filing the Application was incurred in good faith and whether substantial prejudice will result to anyone affected by the delay within the meaning of section 34(2) of the Code.

3The respondent filed its Response and written submissions on September 23, 2011.

4The applicant filed a Reply on October 11, 2011.

SECTION 34

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.

PARTIES’ SUBMISSIONS

6The applicant acknowledges that the last incident was the alleged discriminatory dismissal in 2008. The applicant submits that the delay was incurred, in part, because his counsel undertook negotiations with the employer to avoid the necessity of an Application and because of complications related to his mental condition. The applicant indicates that his disability negatively impacted his cognitive abilities and that this was compounded by depression. Along with his Application, the applicant provided a document from his wife describing his condition, including concerns regarding the applicant’s difficulty in understanding certain information. The applicant submits that the respondent has not demonstrated prejudice and that the balance of convenience should favour him, as an individual, over the respondent, a corporation.

7The respondent submits that the delay was not incurred in good faith. The respondent highlights that the applicant retained and worked with legal counsel immediately after his dismissal and throughout the period of time constituting the delay. The respondent also points out that the applicant filed a claim with the Workplace Safety & Insurance Board two years prior to filing this Application. The respondent notes that there is no medical evidence in support of the applicant’s position with respect to his disability impacting his mental capacity. Lastly, and in the alternative, the respondent submits that it would experience substantial prejudice because some key witnesses are no longer available.

ANALYSIS

8The 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.

9This Application was filed approximately three years after the last alleged discriminatory incident. The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

10In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) directly 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.

11The applicant submits two reasons for the delay: (i) mental health concerns and (ii) on-going negotiations with the employer. With respect to the first reason, the applicant did not provide any corroborating medical evidence to support his claim that his disability impaired his ability to pursue his rights. As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12I do not accept the applicant’s claim that his condition impacted his cognitive abilities to the extent that he was prevented from pursuing his rights under the Code in a more timely fashion. This claim cannot be reconciled with the applicant’s acknowledgment that he provided on-going instructions to legal counsel to settle the matter in order to avoid filing an application and the fact that the applicant promptly pursued a workers compensation claim following his dismissal.

13With respect to the applicant’s second reason, namely delay due to settlement negotiations, it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

14As such I find that the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. While the applicant may well have experienced disability-related concerns before and even after his dismissal, he has not established that he could not have pursued his rights within the timeline mandated by the Code.

15Given my finding that the delay in filing this Application was not incurred in good faith, it is not necessary for me to consider whether substantial prejudice would result from the delay: Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

ORDER

16Accordingly, the Application is dismissed.