HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dorina Grossi
Applicant
-and-
York Lanes Health Centre
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Grossi v. York Lanes Health Centre
1This is an Application filed on February 24, 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 disability and states that her employer terminated her employment. In late April 2008, the applicant was diagnosed with Stage 2B Nodular Sclerosing Hodgkin’s Lymphoma. The applicant informed her employer, the respondent, of her illness and that she required chemotherapy treatment. The applicant and her manager, Ms. Brant agreed that she would go on sick leave as of May 2008. The applicant states that she updated the respondent regarding her progress after each medical assessment.
3On January 14, 2010, the applicant informed Ms. Brant she was able to return to work on a part time basis. Ms. Brant informed the applicant that the company was under new management and the applicant no longer had a job with them. The applicant pursued employment with the new company, Appletree Medical Group Inc. (“Appletree”), but was not successful
4The Tribunal issue a Notice of Intention to Dismiss (“NOID”) on March 15, 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. The Tribunal also asked the applicant to confirm whether she intended to name Appletree as a respondent to her Application. By letter dated March 21, 2011 the applicant responded to the NOID in writing. The Tribunal has not delivered the Application to the respondents.
5Section 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:
- (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.
6The Application was filed on February 24, 2011. The applicant learned of the termination of her employment with the respondent on January 14, 2010. 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. To establish good faith, the Tribunal requires an applicant to establish a reasonable explanation for the delay. See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241 at paragraphs 24 and 25.
7The events described in the Application occurring after January 14, 2010 relate to the applicant’s pursuit of employment with Appletree against which the applicant states she will file a separate Application.
8The applicant explained that upon learning of the termination of her employment she immediately attempted to discuss the situation with the new owners to no avail. She also attended a group interview and completed on-line English Literacy and Group Interview Exams with a view to obtaining a job interview with Appletree. The applicant states she passed the exams, but was not offered an interview. Having received no satisfaction, the applicant states that she initiated a complaint with the Ministry of Labour, which took the rest of the year to complete.
9On December 8, 2010, an Employment Standards Officer awarded the applicant three weeks’ pay in lieu of notice, pursuant to the Employment Standards Act, 2000. The applicant states that a Ministry of Labour officer suggested that she consider filing a complaint to the Tribunal. Accordingly, she decided to submit her Application on February 24, 2011.
10The applicant’s submissions appear to suggest that she did not pursue an application to the Tribunal because she was pursuing her complaint to the Ministry of Labour. Her submissions also indicate that she did not consider an application to the Tribunal until a Ministry of Labour officer suggested that such an application may be appropriate. The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14.
11The applicant learned of the termination of her employment on January 14, 2010. The applicant clearly felt this decision was wrong and, after trying to resolve the situation herself, she filed a complaint with the Ministry of Labour. In these circumstances, she was obliged to investigate her rights, including her rights under the Code. Further, she states that she became aware that she could file an application to the Tribunal in the course of the investigation of her complaint to the Ministry of Labour, which concluded on December 8, 2008. At this point, she could have easily educated herself about the Tribunal’s processes and filed a timely application had she exercised reasonable diligence. Instead, she took no action for over two months, after the one-year deadline passed.
12Consequently, 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.
13The Application is dismissed.
Dated at Toronto this 15th day of April, 2011.
“Signed by”
Douglas Sanderson
Vice-chair