Murray v. Craigwood Youth Services, 2011 HRTO 677

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samantha Murray

Applicant

-and-

Craigwood Youth Services Inc.

Respondent

DECISION

Adjudicator: Alan G. Smith

Date: April 7, 2011

Citation: 2011 HRTO 677

Indexed as: Murray v. Craigwood Youth Services

WRITTEN SUBMISSIONS

Samantha Murray, Applicant ) Self-represented

Craigwood Youth Services Inc., )

Respondent ) Colin Osterberg, Counsel

BACKGROUND

1This is an Application filed on September 4, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondent employer discriminated against her on the basis of disability.

2In the Application the applicant acknowledges that the Application was filed more than ten months after the last incident of alleged discrimination.

3The respondent filed a Response on September 22, 2009, including submissions requesting the Tribunal dismiss the Application because of lack of jurisdiction (power to decide) due to the delay in filing the Application.

4In response to a Tribunal Case Assessment Direction of March 18, 2011, the Applicant filed further submissions with regard to the delay issue on March 29, 2011.

5The respondent employer asserts that all arguably relevant events in the Application took place prior to the end of October 2007. Specifically, that the last possible “incident” of discrimination alleged by the applicant was October 19, 2007, the date the respondent employer informed the applicant that it was unable to accommodate her disability.

6The Application confirms that October 19, 2007, was the date of the latest possible “incident” of alleged discrimination, in essence admitting that the Application was filed some 22 months after that incident.

7In her Application the applicant also notes that the Civil Action she undertook against the respondent was finally dismissed by the Superior Court of Justice on April 15, 2009. As well, the applicant admits that in a conversation on April 11, 2009, with a representative of her bargaining agent, the Ontario Public Service Employees Union (OPSEU), “she recommended I apply for a human rights violation for being terminated due to disability”.

8In her Application the applicant states with regard to the delay issue:

I realize that I am applying past the one year time limit. However, I was informed by my lawyer that this would be rectified through a civil Court Action. He did not advise me to even apply to the Human Rights Tribunal. Unfortunately, since the Court system move [sic] slowly, it wasn’t until recently I was informed that my civil Action was dismissed due to case law….

9In her March 2011 submissions the applicant explains:

I had originally attempted to file a civil action against Craigwood following the termination of short term disability. Between starting the civil action and the time of discovery that my civil case was Statute Barred, I was terminated by Craigwood for my disability. I was not advised by my lawyer, at the time, that I could file an application with the Human Rights Tribunal. When I was made aware that this was an option I immediately filed my application.

DECISION

10The Tribunal does not have the general power to inquire into claims of unfairness or wrongdoing outside the parameters prescribed in the Code. The Tribunal’s jurisdiction is limited to dealing with disputes that properly fall under the Code: Fulton-Bell v. Kawartha-Haliburton Children’s Aid Society, 2009 HRTO 1769.

11Section 34 of the Code sets out the Tribunal’s jurisdiction with regard to time limits on accepting Applications. The one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. The Code also gives the Tribunal discretion to accept late applications in certain circumstances.

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.

12The 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.

13In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide 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. Good faith is more than just the absence of bad faith. To succeed under s. 34(2) the applicant has to show she acted with all due diligence: Reid v. Ontario March of Dimes, 2009 HRTO 2207.

14The Tribunal has held that ignorance of one’s rights does not, except in the most exceptional of cases, constitute a reasonable explanation for the purposes of s. 34(2) of the Code. See Lutz v. Toronto, 2009 HRTO 1137; Deslauliniers v. Canadian Auto Workers, 2009 HRTO 1743 and Hunter v. Vermeer, 2010 HRTO 669. In other words, ignorance of one’s rights may in some circumstances amount to good faith but to succeed the applicant must also establish that she had no reason to make inquiries about her rights. See Cort v. Suncor Energy, 2010 HRTO 853 and Simon v. Peel Regional Police Services, 2010 HRTO 433.

15Similarly, in some circumstances it could be reasonable for an applicant to pursue other avenues before resorting to an application under the Code. However, it is not reasonable for an applicant, as in this case, to delay making inquiries about the existence of Code time lines while awaiting the outcome of other processes. See Hall v. Royal Victoria Hospital, 2010 HRTO 1165.

16Although it may be, as the applicant argues, that her legal counsel failed to inform her regarding her rights pursuant to the Code, that by itself does not constitute a satisfactory explanation for why she could not have filed her Application in a timely manner. Indeed, the applicant fails to explain why, given that her civil action was dismissed in April 2009, and she was advised by OPSEU to file a Tribunal application on June 11, 2009, she waited until September 4, 2009, to do so.

17Given 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. Therefore the Tribunal is without jurisdiction to proceed with the Application.

18The 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.

ORDER

19The Application is dismissed.