HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Winterburn

Applicant

-and-

General Motors of Canada Limited, General Workers Union – Canada (CAW Canada), and General Workers Union of Canada (CAW Canada) Local 1973

Respondents

DECISION

Adjudicator: Alan G. Smith

Date: March 29, 2011

Citation: 2011 HRTO 618

Indexed as: Winterburn v. General Motors of Canada

WRITTEN SUBMISSIONS

Alan Winterburn, Applicant ) Peter Hrastovec, Counsel

General Motors of Canada, Respondent ) Greg Bullen, Counsel

CAW Canada and CAW Canada Local 1973 ) Farah Baloo, Counsel

Respondents )

Background

1The applicant filed this Application on July 27, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination in employment on the grounds of disability, specifically with regard to differential treatment in retirement benefits. Responses were filed by the union respondents on December 17, 2010, and the employer respondent on January 4, 2011.

2In their Responses, the respondents argue that the Application should be dismissed as outside the jurisdiction of the Tribunal because the alleged incidents of discrimination occurred beyond the Code’s one year limitation period.

Decision

3Section 34 of the Code provides:

(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.

4The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

5Pursuant to section 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. 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

6The respondent employer asserts that all arguably relevant events in the Application took place prior to July 27, 2009. Specifically, that the last possible “incident” of discrimination alleged by the applicant was July 15, 2009, the date the applicant finalized the terms of his retirement with the respondents. The respondents argue that, “the fact that the retirement took effect on August 1, 2009, is irrelevant, as the retirement was finalized and irrevocable by July 15, 2009”.

7In a Reply filed February 28, 2011, the applicant argues that he only discovered the fact that similarly situated employees were receiving a retirement package superior to his in November 2009. Therefore, he argues, the limitation time period should only start to run from that date. Alternatively, the applicant says that the limitation period should only begin to run from August 1, 2009, when his retirement came into effect.

8The applicant’s assertion that he only fully learned of the respondent’s discriminatory actions in November 2009 is an argument that essentially relies on the notion of discoverability. With respect to discoverability, the Tribunal in Klein, supra, observed (at para. 23):

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.

9The Tribunal does not accept the applicant’s arguments in the circumstances of this case. It was not in November 2009 that the applicant came to first understand or believe that the respondents had treated him unfairly because of his disability. In fact, because the information revealed at that time had to do with similarly situated employees (those also receiving Ontario Workplace Safety and Insurance Board benefits) the new information discovered by the applicant in November 2009, even if verifiable, did not give rise to knowledge of any violations of the Code. In any case, the information allegedly uncovered by the applicant in November 2009 was not information that helped the applicant discover his case, but rather evidence that he believed supported his allegations. This discovery does not establish good faith, as it does not suggest that the applicant was unaware within the statutory time frame that he had a potential application to the Tribunal.

10The applicant’s argument that the time limit should run from the date of his retirement, August 1, 2009, also cannot succeed. At best the retirement date can be characterized as an event that flowed from the alleged Code breaches. The fact of the applicant’s retirement may be as a result of the alleged discriminatory actions, but it is not a further incident of discrimination. The continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents: Mafinezam v. University of Toronto, 2010 HRTO 1495. At the same time, a “continuing contravention” pursuant to s.34(1)(b) requires a succession or repetition of separate acts of discrimination of the same character; that is separate contraventions of the Code. One act of discrimination with continuing effects is not a continuing contravention. See Visic v. Ontario (Human Rights Commission), (2008), 2008 CanLII 19784 (ON SCDC), 236 O.A.C. 110 (Ont. Div. Ct.).

11The applicant has provided no satisfactory explanation for why he could not have filed his Application to this Tribunal in a timely manner. Given the absence of evidence that the delay was incurred in good faith, I find that the Application does not satisfy the requirements of section 34 of the Code.

12The Tribunal has held that, if it has not been shown that the delay was incurred in good faith, it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579).

13The Application is therefore dismissed.