Barry Bezaire v. Prestressed Systems Inc., 2011 HRTO 2252

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barry Bezaire

Applicant

-and-

Prestressed Systems Inc.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: December 15, 2011

Citation: 2011 HRTO 2252

Indexed as: Bezaire v. Prestressed Systems

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), on July 15, 2011 in which he alleges discrimination in employment on the ground of disability. It appears from the Application that the applicant alleges he was terminated in October 2008 as a result of his disability and the respondent Prestressed Systems failed to accommodate his disabilities to the point of undue hardship. The Application also alleges that since his termination he has sought a "severance and termination package", through his representative, by contacting the respondent Prestressed Systems and Labourers' International Union of North America Local 625 ("the union"). In the Application, the applicant named the respondent Prestressed Systems and the union as respondents.

2The Application has not yet been sent to the respondent Prestressed Systems or the union for Response.

3By letter dated September 14, 2011, the Tribunal sent the applicant a Notice of Incomplete Application and Notice of Intent to Dismiss Application ("NOID"). In addition to stating that the Application was incomplete as a result of missing contact information, in the NOID the Tribunal wrote that the Application may be outside the Tribunal's jurisdiction because the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code by the union. The Tribunal requested that the applicant provide written submissions responding to the identified issues.

4By correspondence dated September 27, 2011, the applicant's representative wrote to the Tribunal agreeing that there were no allegations against the union and requesting that the Application be dismissed against the union.

Allegations against the union

5The Tribunal's power to hear and determine human rights applications is based upon the Code which, among other things, prohibits discrimination and harassment with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have a general power to evaluate claims of unfairness unless affected by a ground in the Code.

6On its face, the Application does not make any allegations against the union on the basis of disability, and the applicant has acknowledged this in his counsel's letter to the Tribunal. As the Tribunal has no jurisdiction over this part of the Application, it is dismissed against the union and the style of cause is amended accordingly.

Delay in filing the Application

7Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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 subsection 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.

8The Tribunal has the discretion to waive the mandatory limitation period where it finds that the applicant's delay in filing the application was incurred in good faith. In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

9Efforts to pursue one's rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508, and Gagne v. Maximum Mining, 2010 HRTO 689.

10While the applicant identifies June 21, 2011 as being the last date upon which the Application is based, it appears that this is based upon communications between the applicant's representative and counsel for the respondent Prestressed Systems flowing from the applicant's termination, which, amongst other documents, are appended to the Application. It appears that the essence of the Application is the applicant's termination and events leading up to his termination, which occurred in October 2008 and before, and thus may be untimely.

11The Tribunal directs that the applicant deliver to the respondent Prestressed Systems and file with the Tribunal submissions within 14 days of the date of this Interim Decision, addressing how his allegations against the respondent Prestressed Systems are timely and what, if any, good faith reason he has for any delay in filing his Application.

12The Tribunal will send the Application to the respondent Prestressed Systems together with correspondence regarding the NOID. The respondent is not required, at this point, to file a Response. However, if the respondent wishes to make submissions on the issue of delay, it must deliver its submissions to the applicant's representative and file with the Tribunal within 14 days of the date that it receives a copy of the applicant's submissions on the issue of delay.

13Upon receipt of the parties' submissions, the Tribunal may issue further case directions.

ORDER

14The Tribunal makes the following order:

a) The union is removed as a respondent;

b) The applicant has 14 days from the date of this Interim Decision to deliver to the respondent Prestressed Systems and file with the Tribunal submissions explaining why his Application is not beyond the one year limitation period set out in section 34(1) of the Code and if so, how the delay was incurred in good faith; and

c) The respondent Prestressed Systems has 14 days from the date that it receives the applicant's submissions to deliver to the applicant's representative and file with the Tribunal any submissions addressing delay.

15I am not seized of this matter.