HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daneila Lechet
Applicant
-and-
Casey House and Stephanie Karapita
Respondents
DECISION
Adjudicator: Alan G. Smith
Indexed as: Lechet v. Casey House
WRITTEN SUBMISSIONS
Daneila Lechet, Applicant ) Self-represented
Casey House and Stephanie Karapita, )
Respondents ) James A. LeNoury, Counsel
Background
1The applicant filed this Application on December 7, 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, sex and sexual orientation. A Response was filed by the respondents on March 8, 2011.
2In their Response, 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: See 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 December 2009. Specifically, that the last possible “incident” of discrimination alleged by the applicant was November 17, 2009, the date the institutional respondent’s health administrator, St. Michael’s Hospital Corporate Health Card Department, recommended that a further meeting to discuss the applicant’s return to work was premature.
7In a Reply filed March 21, 2011, the applicant states that,
December 12, 2009, was the last day that I could take any more of the discrimination and harassment and my disability gave Casey House management another angle to discriminate against me.
8The Tribunal does not accept the applicant’s argument that the time limit should run from the date of her resignation, December 12, 2009. At best her resignation can be characterized as an event that flowed from the alleged Code breaches. The fact of the applicant’s resignation may be 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. See 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.).
9The applicant has provided no satisfactory explanation for why she could not have filed her 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.
10The 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).
11The Application is therefore dismissed.
Dated at Toronto, this 30th day of March, 2011.
”signed by”____________
Alan G. Smith
Member