HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jesse Lloyd
Applicant
-and-
Wellington Catholic District School Board
Respondent
decision
Adjudicator: Lorne Slotnick
Indexed as: Lloyd v. Wellington Catholic School Board
APPEARANCES
Jesse Lloyd, Applicant ) Self-represented
Wellington Catholic District School Board, ) Eric Roher and Melanie Warner,
Respondent ) Counsel
1This Decision deals with a Request by the respondent that this application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), be dismissed because of delay in its filing.
2The respondent is a publicly funded separate school board that operates 19 schools in Guelph and the rest of Wellington County. The applicant is a teacher who applied for a position with the respondent and claims discrimination on the basis of creed. In his Application to the Tribunal, he objects to the respondent’s practice of asking for a pastoral letter of reference from prospective teachers. He also objects to being asked (in the respondent’s online application form) whether he was a practicing Roman Catholic and whether he took the Roman Catholic Religion Education course at a faculty of education. The respondent acknowledges that these requests are made of job applicants, but says there is no violation of the Code.
3The applicant first applied for a position with the respondent in June 2006, and again in August 2006. He has made no applications for employment with the respondent since then. His Application to the Tribunal alleging discrimination was filed nearly three years later, and is dated June 8, 2009. In answer to the question on the Tribunal Application of when the last event happened, the applicant filled in June 8, 2009.
4The respondent requests that the Application be dismissed as untimely, and relies on the one-year limitation period in section 34 of the Code. The section also allows the Tribunal discretion to accept late applications in some circumstances. The relevant portions read as follows.
34.(1) If a person believes that any of his or her rights under Part IV 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.
5The respondent argues the Tribunal should not exercise its discretion to waive the one-year period because the applicant has not demonstrated that the delay was incurred in good faith. It also argues that proceeding would result in substantial prejudice to the respondent.
6A hearing on the respondent’s Request to dismiss was held by teleconference on February 4, 2011. Each party had already filed written submissions.
7The applicant concedes that there was a delay in his filing of the application, but asks the Tribunal to proceed because the questions and requirements that sparked his initial objection are still in place. If he were to apply now for a position with the respondent, the applicant would still be asked whether he was a practicing Roman Catholic and to provide a pastoral letter of reference – facts that are not denied by the respondent. The applicant argues that the alleged violation of the Code recurs every time he views a job posted by the respondent, and that it would be pointless to keep applying when he cannot provide the desired answer to the question of whether he is a practicing Roman Catholic.
8The applicant advised that he did not file a human rights complaint right away because he was not aware of his options and did not know where to go with his concerns. In 2009, he said, he had more time to think about the question and decided to pursue it. He said he was unaware of the limitation period in the Code when he filed the Application.
9The respondent says the “incidents” to which the Application relates did not end in 2009, as the Application states, but rather in 2006, when the applicant last applied for a position with the respondent. It relies on the case law developed at the Tribunal and in the courts as to whether in this case the delay was incurred in good faith, and how the one-year limitation period applies in ongoing situations. This case law is discussed below.
Decision
10This Tribunal has ruled in dozens of cases on the one-year limitation period, and in particular what is required for an applicant to establish that a delay beyond the one-year period is incurred in good faith. It is safe to say that the Tribunal has imposed a heavy onus on applicants who wish to pursue their cases despite filing beyond the one-year mark.
11In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at para. 24 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
12Of particular relevance to this applicant’s statement that he did not know how to pursue his claim is the following statement from Lafleur v. Kimberley Scott, 2009 HRTO 1141, para. 8:
Delay has been found not to have been incurred in good faith where it was due to willful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).
13While in this case, the impugned requirements imposed by the Respondent are ongoing, the courts and this Tribunal have rejected the view that a continuing situation brings the applicant within the one-year limitation period, as the following passage from the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19, adopted by the Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, makes clear:
To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.
14The Tribunal has adopted the same reasoning. See for example Mafinezam v. University of Toronto, 2010 HRTO 1495. In that case, the Tribunal made the point that in an ongoing situation there would be effectively be no time limit at all under section 34 if the applicant’s argument were accepted.
15The applicant applied for a job in June 2006, at which time he was asked about his Catholic faith. He applied again in August 2006. These are the only “incidents” in this situation, and the applicant’s one-year time limit began running after the last incident in August 2006. It is clear that there was nothing preventing the applicant from pursuing his human rights concerns at any time within a year of August 2006. He has provided no reasonable explanation for his failure to file this application before June, 2009. In the circumstances, I cannot conclude that his delay was incurred in good faith.
16Given this conclusion, there is no need to address the respondent’s argument about substantial prejudice.
17For the reasons above, the Application is dismissed.
“Signed By”
Lorne Slotnick
Member