HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dominic Sgro
Applicant
-and-
Spar Marathon and Roofing Supplies
Respondent
DECISION
Adjudicator: Alan G. Smith
Indexed as: Sgro v. Spar Marathon and Roofing Supplies
WRITTEN SUBMISSIONS
Dominic Sgro, Applicant ) Self-represented
Background
1This is an Application filed on August 9, 2010, 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 him on the basis of disability.
2On March 11, 2011, the Tribunal issued a Notice of Intent to Dismiss (NOID) to the applicant because it appeared that the Application was filed more than one year after the last incident of discrimination described in the Application.
3The applicant responded to the NOID with written submission dated April 2, 2011.
4In his Application the applicant states with regard to the delay issue:
The actual date of discrimination is March 18, 2009. I was lead to believe I have to file up to one year from last correspondence with said company.
5The applicant in fact alleges in the Application that the discriminatory incident occurred in March 2009 when the Workers Safety and Insurance Board was informed by the employer respondent that, “we don’t want him [the applicant] back unless he is 100%”.
6In his response to the NOID the applicant argues:
As to not knowing my rights and time limit I find this unjust….In the first year of layoff I was represented by W.S.I.B. and talked to the Labor Board, a paralegal and two lawyers and none of them told me about Human Rights issues. I heard it through a person in passing conversation. I don’t understand why there is a time limit when rights have been violated…Furthermore;…I have asked for my job back in August 2010 and received no reply…
Decision
7The applicant appears to advance two arguments with regard to the delay issue:
That he was not informed about the one year limitation period on filing a Tribunal Application;
That the non-response from the respondent employer in August 2010 was the last incident in a series of incidents of discrimination and therefore should be considered to be the date on which the limitation period begins to run.
8The 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.
9Section 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.
10The 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.
11In 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.
12The applicant’s first argument cannot succeed. The 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 his rights. See Cort v. Suncor Energy, 2010 HRTO 853 and Simon v. Peel Regional Police Services, 2010 HRTO 433.
13Similarly, 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.
14Although it may be, as the applicant argues, that her legal counsel failed to inform him regarding his rights pursuant to the Code, that by itself does not constitute a satisfactory explanation for why he could not have filed his Application in a timely manner.
15The applicant’s second argument also fails. The Tribunal does not accept the applicant’s contention that the time limit should run from the date of last attempted communication with the respondent. At best the applicant’s inquiry of August 2010 can be characterized as an event that flowed from the alleged Code breach. The fact of the respondent employer failing to reply to the applicant’s inquiry of August 2010 may be as a result of the earlier 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 CanLII 19784 (ON SCDC), 236 O.A.C. 110 (Ont. Div. Ct.).
16Given 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.
17The 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
18The Application is dismissed.
Dated at Toronto, this 11th day of April, 2011.
“Signed by”
Alan G. Smith
Member