McLarry v. Court Valve Company Inc., 2011 HRTO 2266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David McLarry

Applicant

-and-

Court Valve Company Inc. and the Workplace Safety and Insurance Board

Respondents

DECISION

Adjudicator: Naomi Overend

Date: December 19, 2011

Citation: 2011 HRTO 2266

Indexed as: McLarry v. Court Valve Company Inc.

1The applicant filed an Application alleging discrimination in employment and the provision of services on the basis of disability contrary to Human Rights Code R.S.O. 1990, c. H.19, as amended, (the "Code"). He names two unrelated organizational respondents – his former employer and the Workplace Safety and Insurance Board ("WSIB") – in his Application.

2The Application concerns events, the last of which appears to have taken place in October 2001. The Application was filed with the Tribunal on October 21, 2011, ten years after the events apparently giving rise to it. Although his allegations are not clearly set out in his Application, they appear to relate to his employer's decision to not allow him to remain in his pre-injury position, the rate of pay he was receiving for his job and the ultimate termination of his employment. With respect to the WSIB, the allegation appears to be that his income replacement was/is not at 100% of his wage.

3The Tribunal sent the applicant a Notice of Intent to Dismiss for delay on November 15, 2011 and the applicant responded to that Notice with written submissions. Again, it is somewhat difficult to understand the applicant's submissions, but the gist of them appear to be that he attempted to deal with his disputes with his employer through the WSIB appeal's process and, in any event, he wants the Tribunal to render a decision with respect to his WSIB benefits.

4An application that is filed more than one year past the last incident of alleged discriminatory conduct may be barred by virtue of s. 34, which 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 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.

6This Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There was nothing to prevent the applicant from filing a separate human rights complaint and/or application even while pursuing his appeals with the WSIB.

7The applicant appears to be relying on the fact that under the former Code, the Ontario Human Rights Commission (the organization to whom he would have made a timely complaint) would have dismissed any complaint under what was then s. 34(1) (a). This is not a good faith explanation for the delay. In any event, the Code was amended in 2008 and yet the applicant waited more than three years to file this Application.

8Given 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.

9The Application is dismissed.