Janet Brown v. Vigour Limited Partnership LWI Cheltenham and David Cutler, 2011 HRTO 636

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Brown

Applicant

-and-

Vigour Limited Partnership LWI Cheltenham and David Cutler

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: March 31, 2011

Citation: 2011 HRTO 636

Indexed as: Brown v. Vigour

1This is an Application filed on January 28, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Application alleges discrimination in employment because of race and states that her employer did not accommodate her after a workplace injury and terminated her employment. The termination of her employment occurred on April 6, 2009 and the Application indicates that this was last event on which the complaint is based. On July 27, 2009, the applicant executed a Memorandum of Settlement between the Applicant, the respondent and the Applicant’s union, to accept a separation package from her employer in exchange for the withdraw her grievance that alleged violations of the Code, including a failure to accommodate. The Memorandum also included comprehensive release language.

3The Tribunal issued a Notice of Intention to Dismiss (“NOID”) on March 11, 2011 because the Application was filed more than one year after the last alleged incident of discrimination and therefore appeared to be outside the Tribunal’s jurisdiction. On or about March 23, 2011 the applicant responded to the NOID in writing. The Tribunal has not delivered the Application to the respondents or requested submissions from them regarding the NOID.

4Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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.

5The Application was filed on January 28, 2011. The termination of her employment, the last event on which the Application is based, occurred on April 6, 2009. I must determine if this delay was incurred in good faith and, if so, whether the respondent would suffer substantial prejudice as a result of the delay.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The Memorandum of Settlement contained the following paragraph:

2. In consideration of the decision and conclusion set out in the letter dated May 15, 2009 from the WSIB adjudicator (Becky McLean), the Union has requested (sic) severance payment for the Grievor in accordance with the ESA.

The letter of May 15, 2009 from the WSIB (“the WSIB letter”) to the Applicant explained that there was no benefit to be gained by the Applicant’s participation in Labour Market Re-entry; therefore, the WSIB would pay her full loss of earning benefits to age 65. The applicant explained that she did not file the Application earlier because she did not receive a copy of “the letter which confirmed that I would be paid until 65 years old.” She states that she did not receive a copy of this letter until some time in February 2011. The letter to which she refers would appear the WSIB letter.

8Whether the letter in question is the WSIB letter or some other letter, this explanation is confusing because the applicant filed the Application on January 28, 2011 – before she obtained a copy of the letter. Consequently, it would seem that failure to obtain a copy of the letter was not an impediment to filing the Application.

9In any event, whether she received such a letter is irrelevant. The respondent terminated her employment on April 6, 2009. The applicant clearly felt this decision was wrong and she filed a grievance through her union alleging violation of the Code, including failure to accommodate. The parties settled the grievance and the applicant withdrew the grievance, releasing the respondent from future claims. Receipt of a letter confirming her WSIB entitlements had no bearing on these facts and does not explain her delay.

10Accordingly, the applicant believed her rights under the Code were violated, but did not file the Application until January 28, 2011, nearly two years after the termination of her employment. In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.

11The Application is dismissed.