Campbell v. Papa Larry’s Restaurant, 2012 HRTO 1137

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Campbell

Applicant

-and-

Papa Larry’s Restaurant

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: June 12, 2012

Citation: 2012 HRTO 1137

Indexed as: Campbell v. Papa Larry’s Restaurant

WRITTEN SUBMISSIONS

James Campbell, Applicant

Keith Campbell, Next Friend

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”). The applicant, who is deaf, alleges discrimination with respect to employment because of disability.

2On January 6, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to address the Respondent’s allegation that the applicant had not performed work for the respondent since 2006, four years before the Application was received by the Tribunal on August 31, 2010.

3The CAD directed the applicant to section 34(1) of the Code which reads as follows:

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.

4Keith Campbell, the applicant’s brother, responded to the CAD on behalf of the applicant. The respondent was not required to file submissions.

5Mr. Campbell indicates in his submissions that the applicant was involved in a lawsuit against a used car dealership which the owner of Papa Larry’s Restaurant (referred to as “Papa Larry” in the materials) was aware of and had some involvement in. Mr. Campbell did not indicate when the legal action commenced or concluded except to say that it went on for two years or more. Mr. Campbell indicates that he spoke to “legal representation” at “that time” about filing a human rights complaint against the respondent and he was told to wait and settle one case at a time. Mr. Campbell indicates that the basis for this advice is the fact that Papa Larry was a potential witness in the legal action against the used car dealership. It was Mr. Campbell’s understanding that the applicant’s legal representative would prefer not to have to deal with Papa Larry as a hostile witness. According to Mr. Campbell, he decided, on behalf of the applicant, to follow the advice of his legal representative.

6Mr. Campbell indicates that the applicant won his case against the car dealership and they felt the “time was right” to file an application with the Tribunal against the respondent. He also writes that the entire ordeal was very stressful for the applicant and he has been under doctor’s care for medical conditions as a result.

7Mr. Campbell does not indicate when the first legal action was commenced and when it was finally concluded. He also does not provide specific information about the person who acted as their legal representative and was involved in providing advice on the filing of the human rights claim. Mr. Campbell also makes general statements about the toll that first legal action took on the applicant but does not explain how that is connected to the timing of the filing of the Application before the Tribunal.

8When the allegations against the respondent arose, the applicant had access to the support of his brother Mr. Campbell and a legal representative. The applicant made a choice at that time to withhold the filing of a human rights claim against the respondent as part of the strategy for dealing with the first legal action against the used car dealership. This, in my view, is insufficient to demonstrate that the four year delay in filing the Application was incurred in good faith.

9Having determined that the applicant has failed to establish good faith, it is unnecessary for me to address the issue of prejudice to any person affected by the delay.

10Accordingly, the Application is dismissed.