Orlando Prescod v. National Steel Car Limited, 2011 HRTO 2244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Orlando Prescod

Applicant

-and-

National Steel Car Limited

Respondent

DECISION

Adjudicator: Michelle Flaherty Date: December 14, 2011 Citation: 2011 HRTO 2244 Indexed as: Prescod v. National Steel Car Limited

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 8, 2010, alleging discrimination in employment on the basis of disability. The Application also alleges reprisal or threat of reprisal. In essence, the applicant states that the respondent has not allowed him to return to work because of a disability.

2For the reasons that follow, the Application is dismissed. It was filed well outside the limitation period set out in the Code and the applicant has presented no basis upon which to conclude that the delay in filing was incurred in good faith. In addition, the facts and issues that give rise to the Application have already been addressed by the Tribunal in a number of other proceedings. By repeatedly filing applications that relate to the same parties, facts, and issues, the applicant is abusing the Tribunal’s process.

THE FACTS

3As I understand it, the applicant has not been actively employed by the respondent since sometime in 2006. Since that time, he states that he has attempted to take steps through his union to return to work. He states that he is next on the recall list but that he has not been recalled.

4On April 6, 2011, the Tribunal issued a Notice of Intent to Dismiss the Application (“Notice”), indicating that it appeared the Application was outside the Tribunal’s jurisdiction because of delay. The Notice directed the applicant to provide written submissions on the issue of delay by May 6, 2011, and advised him that a failure to respond to the Notice might be considered an abandonment of the Application.

5As the applicant had not filed any submissions in response to the Notice, on May 25, 2011, the Tribunal issued a Decision dismissing the Application as abandoned: see 2011 HRTO 983.

6On June 16, 2011, the applicant filed with the Tribunal, and delivered to the respondent, a Request for Reconsideration (“Request”). In his Request, the applicant stated that he did not receive a copy of the Notice.

7In a Reconsideration Decision, the Tribunal noted that the Notice to the applicant, dated April 6, 2011, was addressed to the applicant’s union, rather than the applicant. The Tribunal reconsidered its Decision and held that the applicant did not intend to abandon his Application with the Tribunal: see 2011 HRTO 1870.

8The applicant filed submissions in response to the Notice on November 3, 2011. In regards to the timeliness issue, he argues that his efforts to return to work are ongoing and he cites a number of communications he has had with the union in this regard. He states that the last incident of discrimination occurred on October 6, 2011, when the union told him that it would try to get him his job back. The applicant further argues that the discrimination is ongoing because the respondent continues to not allow him to return to work.

9Before considering the timeliness issue, I note two things. First, this Application does not name the applicant’s union as a respondent. Second, the applicant has already filed an application and at least one complaint under the old Part IV of the Code in regards to what seems to be the subject-matter of this Application. Notably:

a. In 2009 HRTO 1246, the Tribunal dismissed an application against the respondent pursuant to paragraph 53(8) of the Code because the application in that case was the same or substantially the same as the subject-matter of a complaint that was filed with the Ontario Human Rights Commission under the old Part IV. (See also the Tribunal’s Reconsideration Decision 2010 HRTO 1586, in which the Tribunal allowed the application to proceed against the applicant’s union); and

b. In 2010 HRTO 2054, the Tribunal dismissed an application against the applicant’s union, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial Service and Workers International Union, Local 7135 because the applicant did not establish a prima facie case of discrimination against the union.

10The previous application appears to relate to the same facts and issues raised in this Application. Both concern the applicant’s allegations that he has not been able to return to work and that the union has not taken appropriate steps to assist him.

ANALYSIS

11Section 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.

12Thus, the Tribunal will not deal with an application filed more than one year after the incident or the 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 anyone affected by the delay.

13The initial onus is on the applicant to show that the delay in filing the Application was incurred in good faith. If he is able to establish good faith, the onus shifts to the respondent to show substantial prejudice.

14In my view, the limitation period under the Code began to run sometime in 2006, when the applicant ceased to be actively employed by the respondent. I do not accept the applicant’s argument that his last communication with the union constitutes an alleged incident of discrimination. An applicant is not able to effectively restart the limitation period in a matter against his employer by petitioning his union to revisit a decision or take further steps. Similarly, the fact that the applicant has not returned to work does not, in my view, mean that the alleged discrimination is ongoing. The fact that the respondent has maintained a decision it took in 2006 is not a new incident of discrimination for the purposes of determining the limitation period: Mafinezam v. University of Toronto, 2010 HRTO 1495.

15Accordingly, I find that the limitation period began to run in 2006. The Application was filed in November 2010, approximately three years outside the limitation period

16The applicant does not appear to argue good faith. I find that the materials filed by the Applicant provide no basis to conclude that the delay in filing the Application was in good faith.

17The Application is dismissed as untimely.

18In closing, I note that the applicant has initiated at least three separate proceedings with the Tribunal concerning essentially the same parties, facts, and issues. This Application is not only untimely, its subject-matter seems to have already been determined by the Tribunal. It is an abuse of the Tribunal’s process for the applicant to repeatedly file applications related to the same subject-matter.