HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Waller

Applicant

-and-

Polycorp Ltd.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: February 8, 2011

Citation: 2011 HRTO 266

Indexed as: Waller v. Polycorp

APPEARANCES

Harold Waller, Applicant ) Self-represented

Polycorp Ltd., Respondent ) Patrick Gannon, Counsel

1This Decision deals with whether the allegations in the Application are within the jurisdiction of the Tribunal and, if so, whether the Application should be dismissed on the basis of delay. A hearing by teleconference was held on February 3, 2011 to address these issues.

BACKGROUND

2The applicant filed his Application on May 5, 2009 alleging discrimination in employment on the basis of record of offences and reprisal, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application named Polycorp Ltd. and six individuals as respondents.

3In an Interim Decision, 2010 HRTO 374, I removed the six individual respondents as parties and asked for submissions from the applicant about whether the Tribunal had jurisdiction over the allegations in his Application. The applicant was specifically directed to provide details, which were missing from his original Application, about what happened, when it happened and why each allegation amounted to a violation of the Code.

4The applicant filed two responses to the Interim Decision, neither of which were entirely responsive to the questions posed in it. He failed to specify dates for his allegations, and he failed to specify on what basis he believed such allegations amounted to a violation of the Code. Rather than requiring further written submissions, the Tribunal directed that the parties make oral submissions on the issue of jurisdiction and delay.

5During the course of these oral submissions, the applicant specified that the company had sent him home in 2006, apparently on the basis of a perceived mental disorder, and asked him not to return to work until he was able to provide medical clearance. When he returned to work, he was subject to only one restriction, and that he was not put on the “re-roll” machine as he had been involved in a life-threatening incident on that machine in 2003. In violation of this restriction, the applicant said, he was placed on the re-roll machine and left there for a year, after which he had a breakdown.

6During the period when he was off work, the applicant alleges that a lab job was posted and filled. He believes he was qualified to do this job and that the reason for filling it during his absence was to assist the person who was hired, who was also a friend of one of the supervisors.

7When he returned to work on April 30, 2007, the applicant alleges that he was assigned to a variety of jobs below his abilities, before being assigned to the back of the “calander” machine, where he stayed until he was laid off from his job on December 19, 2008.

8The applicant also alleges that there was a rumour circulating in the plant in or around 2006, that he was having an affair with the respondent’s former human resources manager, who had been allegedly fired for stealing from the company. He said that these rumours also suggested that he was involved in the theft.

9The applicant further alleges that he was subject to retaliatory treatment on the part of the company because he refused to falsify an ISO audit he was doing on behalf of the company, he complained about sending out product that was dangerous and he reported a supervisor for changing his documentation.

ANALYSIS AND DECISION

10The applicant has not raised any issues with respect to the ground of “record of offences” and it would appear that he selected this ground on the mistaken belief that it applied to his situation. Record of offences is defined either as “an offence in respect of a which an pardon had been granted under the Criminal Records Act (Canada) and has not been revoked” or a provincial offence. The allegation that he had wrongfully been accused of stealing, or having an affair with someone who had been stealing from the company, is not discrimination on the basis of record of offences.

11The applicant appears to have selected the ground of “reprisal” on the basis that he alleges he was punished for refusing to falsify data, complained about bad product and complained about a supervisor altering his data. Reprisal, however, is defined in s.8 of the Code, as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

12The applicant cannot claim the protection of the reprisal section of the Code unless he is:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code:, or
• refusing to infringe the right of another person.

13The applicant does not allege that he was reprised against on the basis of claiming, enforcing or refusing to infringe a Code right, but rather makes allegations in the nature of occupational health and safety violations. This is not reprisal within the meaning of the Code.

14Although he has not selected this ground in his Application, the allegations with respect to the being sent home from work, being assigned to work on a machine contrary to his medical restrictions and being given menial tasks could constitute discrimination on the basis of disability. However, as pointed out by counsel for the respondent, these allegations all appear to be well beyond the one year time limit set out in the Code.

1Section 34 of the Code states:

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 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.

2As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “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.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

15The respondent asserts that the last allegation that appears to be related to the applicant’s disabilities occurred in April 2007 when the applicant returned to work he found demeaning and beneath his skill levels. On the applicant’s own version of the facts, he worked without incident from April 2007 to December 2008, when his layoff occurred.

16The applicant alleges that his lay off from work in December 2008 was discriminatory, and hence his Application, which was filed in May 2009, was timely. However, when asked what the basis for alleging his lay off was discriminatory, the applicant returns to his allegations concerning the supposed affair, his alleged participation in the theft, and his vigilant attitude to health and safety matters, none of which relate to a ground under the Code.

17Accordingly, those allegations raised in the Application (or by the applicant in subsequent submissions) that appear to be within the jurisdiction of this Tribunal, are outside the one year time limit. The Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As 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.

18Other than operating on the mistaken belief that the reasons he alleges for his termination are discriminatory, the applicant has provided no explanation as to why he did not pursue his rights under the Code in a timely fashion. Given the absence of a reasonable explanation that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application and it is, therefore, not necessary to address the issue of prejudice.

19Accordingly the Application is dismissed.