Jeffery McIlquham v. Invista Canada, 2011 HRTO 2036

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffery McIlquham

Applicant

-and-

Invista Canada

Respondent

decision

Adjudicator: Keith Brennenstuhl

Date: November 9, 2011

Citation: 2011 HRTO 2036

Indexed as: Mcllquham v. Invista Canada

1This is 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.

2On August 19, 2011, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because of delay. The Application refers to alleged incidents of discrimination in the six month period prior to February 23, 2010. The Application was filed July 18, 2011.

3The Tribunal does not have the power to consider claims filed more than one year after the last incident of discrimination or 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. (subsection 34(1) of the Code).

4The applicant alleges that in the six month period prior to February 23, 2011 he was deprived of sick leave benefits. He filed a grievance and was represented by his union. The grievance procedure, which did not resolve in the applicant’s favour, was completed on July 18, 2011, the day the applicant filed his Application. In his Application the applicant stated that he applied to the Tribunal more than one year from the last incident of discrimination because “[i]t took the grievance procedure so long completed July 18, 2011” (sic).

DECISION

5In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation why he or she failed to pursue his or her rights under the Code in a timely manner.

6Having considered the matter, I am not satisfied the delay in filing the Application was incurred in good faith.

7It is apparent that the reason for the delay in filing the Application was because the applicant wanted to see if his issues could be resolved through the grievance process before filing his Application with the Tribunal. This is not a reasonable explanation for the delay.

8Nothing prevented the applicant from filing a timely Application under the Code while he pursued his grievance.

9This Tribunal has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one’s rights under the Code constitutes a good faith reason for delay in filing an application. See Mu v. Cargill Foods, 2011 HRTO 846, at paragraph 42.

10The applicant has not provided a reasonable explanation for the failure to file a timely Application under the Code. I am not satisfied therefore that the delay in filing the Application was incurred in good faith. In light of this determination it is not necessary to make the further determination as to whether anyone has been substantially prejudiced by the delay.

11The Application is dismissed.