Lal v. Skechers USA Canada Inc., 2012 HRTO 1008

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Lal

Applicant

-and-

Skechers USA Canada Inc. and Kamlesh Parikh

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Decision Date: May 17, 2012

Citation: 2012 HRTO 1008

Indexed As: Lal v. Skechers USA Canada Inc.

1The mediation in this matter is scheduled for June 6, 2012, pursuant to a Notice of Mediation dated March 2, 2012 (“the Notice”).

2The applicant filed her Application on October 17, 2011. In their Response, and amongst other positions taken, the respondents submitted that the Tribunal dismiss the Application as being untimely claiming that the last allegation of discrimination set out in the Application is dated October 7, 2010. The applicant filed a Reply in which she submitted, amongst other things, that the “discrimination continues until today. The Applicant[‘s] payroll responsibilities were not restored as of today’s date…”

3Subsequent to receiving the Notice, the respondents filed a Request for Order During Proceedings (“RFOP”) dated March 15, 2012 claiming, again, that the Application was filed outside the mandatory one-year limitation period under the Human Rights Code, R.S.O. 1990, c. H.19. In the RFOP, and along with their covering letter enclosing the RFOP, the respondents request that the mediation be deferred until the Tribunal deal with the timeliness issue.

4By email dated April 1, 2012, the applicant filed what she stated was a Form 11, Response to an RFOP, but the Tribunal only received an Appendix B in which the applicant provided submissions responding to the respondent’s RFOP. The Tribunal has considered those for the purposes of this Case Assessment Direction.

5Section 34 of the Code requires that an Application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(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.

6In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

7While not making a determination at this stage, it appears to the Tribunal that the Application may have been filed outside the one-year limitation period under the Code and thus may be untimely. If the Application is determined to be untimely, then it cannot continue to proceed and will be dismissed.

8While the last incident is identified on the Application as being January 2011, and the Application was filed October 17, 2011, there are no allegations in the Application beyond October 7, 2010, and despite the applicant stating in her Reply that the “discrimination continues until today”. The Tribunal has held in other cases that any alleged continuing effect flowing from the earlier events does not extend the Code’s section 34(1) timeline. See Mafinezam v. University of Toronto, 2010 HRTO 1495, and Stasiuk v. Ontario (Education), 2012 HRTO 864. The Tribunal’s case law is found at www.canlii.org.

9The Tribunal has determined that it is appropriate to consider the respondents’ timeliness issue before the parties attend mediation. Accordingly, the June 6, 2012 mediation date is cancelled.

10If the applicant wishes to file any additional submissions, including any facts, documents or case law, with respect to any delay in filing her Application, including any good faith reason to address the potential delay issue, she is directed to do so by delivering them to the respondents’ counsel and filing them with the Tribunal within five business days of the date of this Interim Decision. If the respondents wish to file further submissions, including any facts, documents or case law, they are directed to deliver them to the applicant and file them with the Tribunal within five business days from the date that they receive the applicant’s submissions.

11If the applicant does not file further submissions within the time period noted above, the Tribunal will make its determination of whether or not the Application can continue to proceed based upon the material that has already been filed by the parties.

12I am not seized with this matter.