Terence Deane v. Ford Motor Company of Canada Limited, 2011 HRTO 693

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terence Deane Applicant

-and-

Ford Motor Company of Canada Limited Respondent

DECISION

Adjudicator: Davd Muir Date: April 12, 2011 Citation: 2011 HRTO 693 Indexed as: Deane v. Ford Motor

Appearances

Terence Deane, Applicant | Daniel Ableser, Student-at-Law Ford Motor Company of Canada Limited, Respondent | D. Stephen Javonovich, Counsel

1This is an Application alleging contravention of settlement made under s. 45.9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated March 10, 2010.

2The Application relates to a settlement that was executed by the parties in April 1999. The applicant states in the Application that the date of the last alleged contravention was on April 30, 1999.

3A Case Assessment Direction (CAD) issued on March 16, 2011 directed the parties to attend at the hearing to address two issues: the delay in bringing this Application and whether the Tribunal could consider agreements not expressly reflected in the Minutes of Settlement. Given my conclusions concerning delay it is not necessary for me to consider the second issue.

4Section 45.9(3) of the Code requires that a Breach of Settlement Application be filed within 6 months of the alleged contravention or, if there are a series of contraventions, within 6 months of the last of the series.

5The applicant and respondent entered into their settlement in April 1999. The applicant says that when he turned 65 on June 2, 2009 he became aware that the pension payments he was receiving pursuant to the 1999 Settlement had changed in a way which, in his view, did not reflect the deal that he made. To the extent that what the applicant is seeking is a contract remedy based on an estoppel argument it may be, as discussed at the hearing, that this is a matter for a court to deal with.

6Even if I were to find that the breach of settlement occurred in June 2009 when the applicant turned 65 the fact remains that the Application was not filed until March 2, 2010, 9 months after the date the applicant claims he became aware of the breach. To have been filed in a timely way in accordance with s.45.9(3) this Application ought to have been filed by no later than December 2, 2009.

7The applicant states that any delay is attributable to his making enquiries of the respondent in an attempt to resolve the issue.

8Although this case is being determined under section 49 and not 34(2) the language of these two sections is identical with the exception of the length of time available to file a Breach of Settlement Application. I find that the six month limitation period is mandatory and is consistent with the Code’s objective that these matters should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application alleging a contravention of settlement within six months of the contravention or last in a series of contraventions. The applicant failed to do this.

9The Tribunal has discretion to waive the time limit where the delay is incurred in good faith. I have considered the applicant’s able submissions on this and the other points raised but I am not satisfied that he has met the good faith requirement in respect of this delay. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

10As noted by the Tribunal in many cases the test for good faith is more than the absence of bad faith. There is no bad faith here. However the applicant knew he considered the settlement to have been breached in June 2009. That is when the clock starts ticking if we accept for the purposes of argument, that the breach occurred in 2009 rather than 1999. Yet, the applicant did not raise his concerns with the respondent until October 27, 2009. The respondent responded to him on November 20, 2009. The applicant waited a further four months before filing his Application. The applicant states that he continued to correspond with the respondents, writing to them again and only receiving a response on February 11, 2010. His application is filed in March.

11In these circumstances I am not satisfied the applicant acted with the necessary due diligence to pursue his claim such that the delay in filing can be excused on the basis that it was incurred in good faith.

12Although the delay here may appear to be insignificant the Tribunal has concluded that a delay of only a few days may be fatal in the absence of a good faith explanation. In Farwell v. Northumberland Services for Women, 2010 HRTO 1126, the Tribunal held as follows:

Although the Application is filed only a few days after the one year deadline the applicant must nevertheless establish that the delay was incurred in good faith. The Tribunal has no authority to accept even brief delays beyond 12 months, unless good faith has been established. This is because the Tribunal’s power to hear and determine human rights applications is based on the Code and the Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith.

13Given that I am not satisfied that there is a good faith explanation for the delay, there is no need to consider whether or not there would be any prejudice to any party were this matter to proceed.

14This Application is dismissed.