Lawrence v. Chrysler Canada Inc., 2012 HRTO 1087

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Lawrence

Applicant

-and-

Chrysler Canada Inc., Leon Rideout, Rick Marshall and Dave Wallace

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: May 31, 2012

Citation: 2012 HRTO 1087

Indexed as: Lawrence v. Chrysler Canada

WRITTEN SUBMISSIONS

Andrew Lawrence, Applicant

Self-represented

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of colour, race, disability and reprisal.

2On May 9, 2012 the Tribunal issued a Notice of Intent to Dismiss to the applicant as it appeared that the Application as against certain named respondents - Thomas Wiley, Muhunthan Kuhanesan, Joseph Coyle and Ken Armstrong - may be outside the HRTO’s jurisdiction because the allegations made in respect of these individuals appear to have occurred more than one year prior to the Application being filed with the Tribunal. Although not identified in the NOID there also appear to be no timely allegations made concerning Leon Rideout.

3A Notice pursuant to Rule 13 is issued before the Tribunal delivers an application to the respondent. The Tribunal will only dismiss an application following a Rule 13 Notice if it is plain and obvious that the Application is not within the Tribunal’s jurisdiction. A decision not to dismiss an application and to continue to process it is not a final decision on the issue of the Tribunal’s jurisdiction: see Rule 13.5.

4The applicant has provided submissions in response to the NOID. For the reasons that follow I find that the bulk of the allegations in the Application are out of time and are not within the Tribunal’s jurisdiction to decide. Consequently the individual respondents identified above should be removed from the Application because there are no allegations within the Tribunal’s jurisdiction implicating them.

5There are two broad allegations made by the applicant. Firstly the applicant alleges that he was subject to reprisal in a job posting in April 2011 as a consequence of his having filed a human rights complaint in 2005. The other allegations relate to an alleged disability. The applicant alleges that he was not properly accommodated in January 2011. The applicant also alleges that he was denied an overtime opportunity on February 6, 2011 allegedly because he was considered unable to perform the work because of his physical restrictions. The applicant also indicates that a grievance was filed in respect of these latter issues and it is not clear what the status of that grievance is. Although not named as a respondent, much of the Application seems to concern inadequate representation of the applicant by his trade union.

6Although this is not clearly stated in the Application it can be inferred that the bulk of the remaining narrative of the Application is a description of an allegedly poisoned work environment experienced by the applicant because of his race and colour.

7The applicant alleges that on December 10, 2010 a co-worker Muhanthan Kuhanesan ridiculed the applicant about an accident which occurred in April 2010.

8The remaining narrative of the Application relates to events going back to 2003. The applicant describes a number of events from 2003 through 2007 including the circumstances leading to his being fired in 2004 and then reinstated after a grievance arbitration in 2005; and, his filing of a human rights complaint in June 2005 which the applicant believes is the basis for the reprisal allegation above. The applicant also describes other efforts of himself and others in the workplace to resolve a number of workplace issues in proceedings before the Ontario Labour Relations Board in 2006 and 2007.

9Section 34 states, in part:

(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.

10In response to the NOID, the applicant reiterates the thrust of the narrative in the Application that all of the events from 2003 to 2007 including the grievance arbitration and the human rights complaint form the backdrop to the alleged reprisal in April 2011. The applicant states that because of these past events and his attempts to vindicate his human rights he was targeted as a trouble maker and subject to the reprisal described above. The applicant made no submissions as regards Ken Armstrong who is alleged to have participated in the alleged failure to properly accommodate the applicant in January and early February 2011.

11The Tribunal has interpreted section 34 of the Code as requiring that 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. The provision has been found to be mandatory subject to section 34(2). The 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. (See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241)

12Implicit in the applicant’s narrative and his submissions in response to the NOID is that he believes that his allegations comprise a series of incidents within the meaning of section 34(1)(b) of the Code. I do not agree.

13The use of the phrase “series of incidents” in section 34(1)(b) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified.

14The common sense meaning of a series of incidents suggests a number of thematically related or similar events occurring in temporal order or succession. The Tribunal has also determined that the logic of the section suggests that lengthy gaps in time between incidents in a putative “series” will interrupt the series.

15The allegation of reprisal in April 2011 appears to be timely as the decision the applicant complains of was made on April 5, 2011 or shortly thereafter. The Application was filed with the Tribunal on April 3, 2011. I find that it is plain and obvious that the remaining allegations in the Application are out of time.

16The bulk of the background allegations to the reprisal complaint occurred between 2004 and 2006. Although the fact that the applicant allegedly raised human rights issues in the context of a grievance arbitration and allegedly filed a human rights complaint in 2005 is properly noted as background to the allegation of reprisal in 2011, the gap between those events and the reprisal allegation is simply too great for them to be considered in a series together.

17Although more closely related in time to the allegations in 2011, the allegation that the applicant was ridiculed by a co-worker in December 2010 does not appear to be connected to the April reprisal allegation as the individual involved in the earlier incident is not alleged to have played any role in the reprisal and the applicant makes no submission connecting the two events. I find that the December 10, 2010 allegation is not one of the series of incidents connected thematically to the reprisal allegation.

18As regards the alleged failure to accommodate and the improper denial of an overtime opportunity, the applicant cited two specific incidents – one on January 21, 2011 and the other on February 6 of the same year. These allegations as well are out of time unless part of a series of incidents. The applicant made no submissions on this point. I find that the allegation of a failure to accommodate which implicates Ken Armstrong and the company nurse, who is not identified as a respondent are not connected thematically with the allegation of reprisal. Similarly the allegation of the improper denial of an overtime opportunity involves different individuals again. The applicant articulates no connection between them and the individuals allegedly involved in the decision making are not the same.

19Section 34(2) provides that the Tribunal may deal with an otherwise untimely allegation where the applicant is able to establish a good faith explanation for the delay and satisfy the Tribunal that there would be no substantial prejudice to any other party in the proceeding. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. See Miller, above.

20The applicant made no submissions addressing this point. I find that there is no good faith explanation offered for the sometimes lengthy delay in this case. Accordingly I find for all of the reasons set out above that the allegations but for the reprisal allegation said to have occurred in April 2011 are out of time and beyond the jurisdiction of the Tribunal. It follows from this conclusion that the individual respondent identified in the NOID are removed from the Application because there are no allegations within the Tribunal’s jurisdiction to which they can be required to respond. The style of cause is amended accordingly.

21It does not follow from this conclusion that no evidence can be lead with respect to any of the other untimely issues raised in the Application. Rather the effect of my conclusions here are the stale dated allegations in the Application are not issues for which any of the respondents can be liable. The extent to which any evidence related to these events is necessary to adjudicate the reprisal allegation is a matter better left to the Member presiding at the hearing to determine at the appropriate time.

22As indicated previously, the proposed respondent Leon Rideout was not specifically identified in the NOID although it is not clear that there are any timely allegations made with respect to this individual. At this stage I find that it would not be appropriate to remove this respondent as the applicant was not directed to address any issue related to him. This Interim Decision is not a final decision with respect to the Tribunal’s jurisdiction to entertain an allegation with respect to this individual or any other aspect of the Application.

23I am not seized of this case.