Sadaghyani v. Kingston General Hospital, 2012 HRTO 1039

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abbas Sadaghyani Applicant

-and-

Kingston General Hospital and Ontario Public Service Employees Union, Local 444 Respondents

DECISION

Adjudicator: Ena Chadha Date: May 24, 2012 Citation: 2012 HRTO 1039 Indexed as: Sadaghyani v. Kingston General Hospital

WRITTEN SUBMISSIONS

Abbas Sadaghyani, Applicant Self-Represented

Introduction

1This Application was filed on February 24, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the grounds of place of origin, ethnic origin, creed, age and association with a person identified by a Code-ground. The applicant is against the applicant’s former employer, the respondent hospital, and his union.

2On April 25, 2012, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) stating that, pursuant to section 53(8) of the Code, the Application may be outside of the Tribunal’s jurisdiction because the subject matter of the Application is the same or substantially the same as human rights complaint previously filed with the Ontario Human Rights Commission (“Commission”). The Notice further indicated that the Tribunal may not have jurisdiction over the Application under section 34(1) of the Code because the Application was filed more than one year after the last incident of discrimination. The Notice directed the applicant to provide written submissions responding to these jurisdictional issues.

3On May 11, 2012, the applicant filed submissions opposing dismissal.

BACKGROUND

4The applicant began his employment with the respondent hospital in February 2003. The applicant alleges that during his employment he was subjected to various acts of harassment and discrimination by co-workers relating to his ethnicity and place of origin. The applicant alleges that he reported his concerns to his employer; however, the respondent hospital failed to properly investigate the allegations. In February 2004, the applicant filed a workplace grievance and a human rights complaint with the Commission against the respondent hospital. The applicant indicates that the Commission did not pursue his human rights complaint because the workplace grievance was proceeding to arbitration.

5The applicant’s grievance was referred to arbitration and a hearing was scheduled on March 11, 2005 with William Kaplan appointed as the arbitrator. A lawyer, Nelson Roland, acted on behalf of the respondent union in pursuing the applicant’s grievance. It appears that the grievance was resolved at arbitration, including payment of $3,000 in compensation to the applicant. The Minutes of Settlement, dated March 11, 2005, required the applicant to withdraw his human rights complaint with the Commission. The applicant alleges that he signed the Minutes of Settlement and withdrew his Commission complaint under duress.

6Based on the applicant’s submissions, it appears that, at some point, the applicant also filed an application under section 74 of the Ontario Labour Relations Act claiming the respondent union did not provide him with fair representation and that this matter may have been dismissed by the Ontario Labour Relations Board.

APPLICANT’S SUBMISSIONS

7The applicant asserts that his previous human rights complaint is different from the current Application because this Application challenges both respondents in the handling of his workplace concerns and alleges that the respondent union failed to properly advance his grievance. The applicant also appears to acknowledge that the current Application relates to the same incidents of workplace harassment and discrimination as alleged in his previous human rights complaint.

8The applicant argues that there is no justification to dismiss his Application because the Commission never conducted an investigation or initiated a resolution process in his previous complaint.

9With respect to the delay, the applicant contends that he lacked understanding of the law, did not have legal representation, believed his concerns were being addressed by the Commission, his union and the Ontario Labour Relations Board and that he experiences social and language barriers.

Decision

10I am of the view that this Application should be dismissed on the basis of delay and also because the substance of the Application was the subject matter of a previous human rights complaint.

11In addition, I note that, in light of the Minutes of Settlement and the applicant’s various legal proceedings, there are significant issues with respect to whether the other processes “appropriately dealt with” the substance of this Application pursuant to section 45.1 of the Code and/or abuse of process. However, given the jurisdictional findings set out below, it is not necessary for the Tribunal to canvass the section 45.1 and the abuse of process issues.

Section 34(1)

12I am also satisfied that the extensive delay in this case was incurred not in good faith and, therefore, the Application does not meet the requirements of section 34(1).

13Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

14The applicant’s allegations regarding workplace discrimination and harassment and the respondent hospital’s alleged improper investigation pertain to 2003 and 2004. The applicant’s allegations against the respondent union relate to the arbitration process in 2004 and 2005. The applicant indicated in response to question 7 of Form 1 that the last event was on March 11, 2005, presumably the date of the arbitration and settlement. As such, the last incident of discrimination would appear to have been in March 2005. This Application was filed in February 2012, almost 7 years after the last incident of discrimination.

15The applicant states that the delay should not bar this Application from proceeding because he was subjected to a conspiracy of mistreatment by the respondents, the arbitrator and the Ontario Labour Relations Board. The applicant indicates that he raised his concerns with the Ombudsman’s Office; however, he did not receive adequate redress through that forum. The applicant also claims that he did not recognize that a limitation period would affect his Application.

16The 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. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

17In determining the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

18The applicant’s submissions indicate that from 2004 and onwards he was actively pursuing other legal recourse in attempting to seek redress. The fact that a person is pursuing other avenues or 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. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

19The applicant indicates that he was not aware of the implications of the limitation period. The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

20The applicant claims that he continues to suffer great financial and personal hardship because of the alleged discriminatory acts that took place 2003 and 2004. The fact that the alleged discrimination has continuing effects does not extend the time limit for filing an application under the Code. See Mafinezam v. University of Toronto, 2010 HRTO 1495.

21The applicant also argues that the delay should be excused because he lacked legal representation. As stated in Moro v. Thames Valley District School Board, 2012 HRTO 436 at para. 21:

The Tribunal process does not require parties to have legal representation and often parties are self-represented...While the absence of legal advice may, depending on the particular circumstances of the case, go to explain the content of an application, the lack of legal counsel alone, without other extenuating circumstances, does not mitigate delay.

22Other than his bald assertion, the applicant has provided no evidence of any social or language barriers that may have prevented him from filing a timely Application. The applicant’s general assertions about being unrepresented, particularly during periods of time that he was actively engaged in other legal processes regarding his human rights concerns, is not sufficient to establish a reasonable explanation for his failure to file this Application within the limitation period.

23Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the requisite Code deadline and that the delay in filing this Application was incurred in good faith as per s. 34(2) of the Code. While the applicant may well have experienced personal hardships following the end of his employment and the events surrounding the arbitration, he has not established that he could not have pursued his rights within the timeline mandated by the Code.

24In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay.

Section 53(8)

25In addition to the untimeliness of the Application, there is also a serious issue with respect to the overlap between the Application and the applicant’s previous Commission complaint.

26Pursuant to section 53(8) of the Code, the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constituted the subject-matter, or substantially the same subject-matter, of a complaint previously filed with the Commission under the old Code. See for example, Visconti v. Great-West Life Assurance Company, 2008 HRTO 270; Bajouco v. Ontario Nurses’ Association, 2009 HRTO 1418 and N.P. v. Ottawa-Carleton District School Board, 2010 HRTO 2422.

27After reviewing the applicant’s submissions and the documentary materials accompanying the Application, I find that the current Application and the previous human rights complaint deal with substantially the same allegations of harassment and discrimination because of ethnicity in reference to a similar period of time against the same respondent.

28Although the applicant did not provide a copy of his previous human rights complaint, it appears based on the Application narrative and his submissions in response to the Notice, the applicant’s Commission complaint alleged that the applicant was subjected to harassment and discrimination by co-workers at the respondent workplace because of his ethnicity. While the applicant’s current Application impugns the conduct of the respondent employer in investigating his allegations and the conduct of the union in allegedly failing to properly represent him at arbitration, the Application also alleges various acts of workplace harassment and discrimination because of place of origin and ethnic origin.

29There is no doubt that the current Application and the previous complaint are interrelated and address substantially the same subject matter. In fact, the applicant’s narrative includes numerous passages of details regarding the alleged workplace harassment and discrimination by his co-workers, which he indicates formed the basis of his human rights complaint that was allegedly ignored by the Commission.

30As such, in addition to the issue of delay, I am satisfied that this Application is barred by virtue of section 53(8) of the Code because the Application arises out of the same factual history and overlapping circumstances, deals with the same issues and asserts the same type of allegations and names the same respondent employer as alleged in the previous human rights complaint.

Conclusion

31In conclusion, this Application is not within the jurisdiction of the Tribunal. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination and the delay was not incurred in good faith. I am also satisfied that this Application is barred under section 53(8), as its subject-matter is substantially the same as the subject-matter of the human rights complaint that the applicant previously filed with the Commission.

32Accordingly, this Application is dismissed.