HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Iyirhiaro
Applicant
-and-
Toronto Transit Commission
Respondent
DECISION
Adjudicator: Naomi Overend
Indexed as: Iyirhiaro v. Toronto Transit Commission
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on July 20, 2010, alleging discrimination in employment on the grounds of race, colour, citizenship and disability. The events giving rise to the Application are alleged to have taken place in 1992.
2On August 23 2010, the Registrar sent the applicant a Notice of Intent to Dismiss (“NOID”) on the basis that the Application appeared to have been filed more than one year after the last incident of discrimination alleged in the Application. Following receipt of submissions from the applicant, in an Interim Decision, 2010 HRTO 2017, the Tribunal dismissed the allegations concerning disability.
3The Tribunal declined to dismiss the allegation of discrimination on the grounds of race, colour and citizenship in its Interim Decision as it was not “plain and obvious, in the absence of a Response, that the applicant’s delay in filing the Application was not incurred in good faith.” The Tribunal indicated that the Application should be delivered to the respondents and that its decision on the issue of delay was not a “final decision.”
4The Application alleges that the termination of the applicant’s employment, by way of a layoff that occurred on November 4, 1992, contravened the Code on the basis of his race, colour and citizenship. Specifically, he alleges that a more junior employee who was laid off at the same time as him, who was not the same race, colour and nationality as the applicant, was re-hired on the same day.
5In his Application, the applicant noted he first learned of this re-hiring in a chance meeting with his former supervisor on April 28, 2010. In this case, the meeting with the former supervisor was not in the employment context. As found by the Tribunal in the Interim Decision, the meeting was not an act of discrimination and that, therefore, the last act of alleged discrimination took place in 1992.
6In its Response, the respondent points out that the applicant’s then counsel wrote to the then Worker’s Compensation Board (“WCB”) on November 25, 1994 alleging that this junior employee was hired instead of the applicant. Indeed, the letter states that the applicant discovered this from discussing this with the junior employee.
7In his Reply, the applicant states that the respondent did not admit to the WCB that it hired this junior employee. Moreover, he argues that his knowledge in 1994 was based on hearsay, whereas his knowledge in 2010 was based on “hard fact (evidence)”.
8The Tribunal’s power to hear and determine human rights applications is based on the Code. The provision which deals with the time limitations for filing applications is set out in s. 34, which states in part:
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.
9As noted above, pursuant to s.34 of the Code, where an application is filed more than a year after the incident to which the application relates (or after the last incident in a series of incidents), the Tribunal cannot deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith.
10As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.
11In the Interim Decision, the Tribunal sets out at length the cases concerning good faith. It is not necessary to deal with those cases, except as they relate to the principle of discoverability. In particular, the pasage at paragraph 23 of Klein v. Toronto Zionist Council, 2009 HRTO 241 (“Klein”) is germane:
What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.
12It is clear from the letter from the applicant’s counsel attached to the Response that the applicant believed in 1994 (and possibly earlier) that the junior employee had been hired in violation of the seniority provisions in place. He had reason to make inquiries and file any complaints at that time (or possibly earlier), but did not do so for another 15½ years. He has provided no evidence of why he did nothing in the intervening years. As discussed in Klein, the discoverablity principle “does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case”.
13Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without jurisdiction to deal with this Application. Accordingly, the Application is dismissed.
Dated at Toronto this 7^th^ day of March, 2011.
”signed by”________________
Naomi Overend
Vice-chair