Barbosa v. York Disposal, 2011 HRTO 857

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louie Barbosa Applicant

-and-

York Disposal Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: May 3, 2011 Citation: 2011 HRTO 857 Indexed as: Barbosa v. York Disposal

WRITTEN SUBMISSIONS BY

Louie Barbosa, Applicant ) Gretta Noorlander, Representative

1The purpose of this Decision is to decide whether the Application should be dismissed because it was not filed with the Tribunal within the one-year statutory deadline.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 10, 2010, which alleged that the respondent discriminated against him with respect to employment because of his disability.

3In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “May 28, 2009”. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), he wrote: “Have been trying to contact employer hoping for resolution: am now using this avenue as recourse.”

4In section 14 of the Application, the applicant also indicated that the facts of the Application are part of an ongoing union grievance and a claim before the Workplace Safety & Insurance Board (“WSIB”). He attached a copy of his union grievance, which was filed on November 27, 2009. He did not attach a copy of his WSIB claim, but indicated that it was filed before his union grievance.

5On January 20, 2011, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss, which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions on this issue.

6The applicant filed written submissions on February 22, 2011, which stated that his delay in filing his Application was incurred in good faith because his union representative told him that he had two years to file it. He also stated that he decided to file his Application after WSIB decided not to order that the respondent re-employ him, and there was an extensive delay in processing his union grievance. The arbitration of the grievance is scheduled to be heard on February 15, 2012.

7The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

8In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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.

9I am not satisfied that the applicant’s six-month delay in filing his Application with the Tribunal was incurred in good faith. I am particularly troubled by the fact that he made contradictory statements about the reason for the delay. Specifically, in his Application, the reason that he provided was that he was trying to contact his employer with the hope of reaching a resolution. By contrast, in his written submissions, the main reason that he provided was that his union representative told him that he had two years to file his Application.

10Furthermore, with respect to the applicant’s reasoning that WSIB decided not to order that the respondent re-employ him and there was an extensive delay in processing his union grievance, in Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated at para. 23:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the [Ontario Labour Relations Board] and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. [Emphasis added]

11In other words, the applicant should have filed a timely Application with this Tribunal while continuing to pursue his WSIB claim and union grievance.

12In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

13The Application is dismissed.