HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Reid
Applicant
-and-
Marriott Hotels of Canada Ltd.
Respondent
DECISION
Adjudicator: Sherry Liang
Indexed as: Reid v. Marriott Hotels Ltd.
WRITTEN SUBMISSIONS
Richard Reid, Applicant ) Denise Boyce, Representative
Marriott Hotels, Respondent ) Jonathan Dye, Counsel
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the disability and sex. The respondent has requested early dismissal of the Application on the basis that it is untimely. For the reasons below, the request is granted and the Application is dismissed.
BACKGROUND CHRONOLOGY
2It is necessary to review in some detail the chronology of the applicant’s attempts to file an Application with the Tribunal and the various communications sent from the applicant’s representative in relation to the Application.
3Until June 30, 2009, the applicant worked as a housekeeping aide with the respondent at a hotel in downtown Toronto.
4On November 12, 2010, the Tribunal received an Application in Form 1 from the applicant, through a representative. The Application describes events before and including the applicant’s dismissal from employment on June 30, 2009. Question #7(d) asks that if applicants are applying more than one year from the last event, to provide an explanation. The applicant wrote, in part:
My application was filed exactly 1 year later, but was bounced around between various departments which delayed my application from reaching the correct department.
5Although the Application was received on November 12, 2010, the applicant’s signature is dated August 18, 2010.
6Although the Tribunal’s Registrar accepted the Application and assigned it a filing date of November 12, 2010, the applicant was advised on December 8, 2010 that it was incomplete and could not be processed until the applicant answered specified questions, before December 28, 2010. The questions, which all applicants are required to answer, relate to whether there are or have been other proceedings based on the same facts as the Application.
7The applicant’s representative returned the completed questions to the Tribunal on December 20. On February 3, 2011, the Tribunal issued a Notice of Application to the respondent. As described in my Interim Decision of November 22, 2011, 2011 HRTO 2116, the respondent requested and received an extension of time to file a Response and subsequently did file its Response with the Tribunal. The respondent also, on April 5, 2011, filed a Request for an Order during Proceedings asking the Tribunal to dismiss the Application on the basis that all the events covered by the Application occurred prior to the applicant’s dismissal on June 30, 2009, and the Application was filed beyond the time limit in section 34(1) of the Code.
8The applicant’s representative filed a response to the Request stating, among other things, that
My client’s application was submitted on June 5, 2010 via regular mail. In fact we have a letter from the HRTO acknowledging that they received my client’s application. Even though the application was incomplete the HRTO return it with a letter stating that if the information requested was submitted within the timeframe given, the application would be given the original date that it was submitted. Please find enclosed letters from the HRTO dated July 12, 2010 and December 8, 2010.
9The July 12 correspondence from the Tribunal acknowledges receipt of a Form 1-A (supplementary form), and returns it to the applicant, stating that in order to file an application, he must [emphasis in original] complete Form 1 (Application). It does not say anything about a deadline for filing a Form 1 and does not state what filing date will be attributed to any Form 1 subsequently received. The letter does not bear a file number.
10The December 8 correspondence from the Tribunal referred to above does state that if the applicant completes his Application by answering the specified questions by December 28, the Application will be accepted and dated as of the date it was originally received by the Tribunal. This letter assigns a file number to the material received.
11In a Case Assessment Direction dated May 10, 2011, the Tribunal indicated that the last date of alleged discrimination appears to be June 30, 2009. In light of the information before it, the Tribunal stated that it must determine whether the Application was filed in accordance with the time lines in section 34(1). The Tribunal noted that the applicant had not provided a copy of the supplementary form 1-A that was returned to him by the Tribunal on July 12, 2010, showing when it was originally received by the Tribunal and directed the applicant as follows:
to file with the Tribunal and deliver to the respondent a copy of the supplementary form 1-A that was returned under cover letter of the Tribunal dated July 12, 2010, and any other evidence that confirms when the original Form 1-A was submitted to the Tribunal.
provide any further submissions on whether the Application was filed within one year of the last incident and whether any delay was incurred in good faith and would result in any substantial prejudice to any person affected.
12The applicant’s representative subsequently provided submissions on May 23, 2011 stating, among other things:
Please note, that although the application was filed on November 12, 2010, the form 1A was submitted well before that date; it was because of the submission prior to July 12, 2010 that the Tribunal requested subsequent information.
In addition, the application was submitted to various departments of the Human Rights Tribunal since June 5, 2010. I have enclosed a copy of a letter sent to the Human Rights Commission and an affidavit from Lydia Picardo, secretary for Network Legal Services, which confirms that the application was mailed to those departments…
13The enclosed affidavit states, among other things, that
On June 5, 2010, I mailed an application to the Human Rights Office located at 55 John Street, Toronto, Ontario M5V 3C6 and on July 8, 2010 I mailed a copy of the application to the Ontario Human Rights Commission located at 110 Yonge Street, Suite 902, Toronto, Ontario M5C 1T4…
14Although two letters were referred to in the affidavit, the applicant provided a copy of the July 8, 2010 letter, but not the June 5, 2010 letter. The letter dated July 8, 2010 is addressed to the “Ontario Human Rights Commission” at “110 Young [sic] St. Suite 902”. It indicates that it was delivered by facsimile and by hand, and machine-generated information at the top of the page indicates that it was sent by fax, apparently to the Commission, on July 10, 2010.
15Also enclosed with the May 23 submissions, although it was not referred to in the affidavit, is a copy of a Form 1-A which bears machine-generated information at the top of the page indicating that it was sent by fax to the Tribunal’s fax number on July 10, 2010. The cover page to this document was not attached.
16As the parties agreed to mediation, the Tribunal scheduled mediation. Mediation did not result in a settlement and the outstanding Requests for Order (the applicant had also filed a Request) subsequently came before me, resulting in my Interim Decision of November 22, 2011. In my Interim Decision I denied the applicant’s requests, and directed the parties to provide any additional submissions they may wish to make on the issue of the timeliness of the Application. I directed the parties to address in their submissions, among other things, whether November 12, 2010, June 5, 2010 or another date should be treated as the filing date of this Application. I also directed the applicant to address whether, if November 12, 2010 is found to be the filing date, the delay was incurred in good faith and in this regard to provide an explanation for why the Application was not filed until November 12, including why it was dated August 18, 2010 but not received by the Tribunal until November 12.
17I indicated that following receipt of the additional submissions, the Tribunal may decide whether the Application should be dismissed as untimely.
18The applicant’s representative filed submissions on December 13, 2011, and also filed a Request seeking to amend the Application to add particulars of additional allegations of discrimination which are said to have been “inadvertently omitted”. The proposed amendments state that the discriminatory treatment of the applicant continued after he was formally terminated on June 29, 2009, and extended to a refusal by the respondent to pay termination pay, which was ultimately paid in April 2010. The applicant also refers to an allegation that the respondent denied him the opportunity, on July 8, 2009, to proceed with a Peer Review process regarding his termination.
19The applicant’s submissions of December 13, 2011 state that if the Tribunal grants the request to amend, the Application is “not late at all”. In the alternative, the applicant states that June 5, 2010 should be treated as the filing date of the Application and that correspondence is enclosed supporting this position. The applicant states that it is clear that the application was sent to the wrong address due to an innocent and inadvertent error and the applicant should not be prejudiced by such an error with respect to being able to enforce fundamental rights.
20Included with the applicant’s submissions of December 13 are the following documents:
The affidavit of Lydia Picardo which had been previously submitted
A letter dated July 5, 2010 addressed to the City of Toronto, Human Rights Office, Metro Hall, 55 John Street, 9th Floor, Toronto, Ontario, stating that it encloses an application [emphasis added]
A letter dated July 8, 2010 addressed to the Ontario Human Rights Commission, 110 Young [sic] St. Suite 902, Toronto, Ontario, stating that it encloses an application and fax confirmation indicating that it was sent on July 10 by fax to the Commission. This letter also states that the application was “inadvertently sent out to the City of Toronto Human Rights Office at Metro Hall”.
A letter dated July 8, 2010 addressed to the Tribunal at 665 [sic] Bay Street, 14th Fl., Toronto, Ontario and fax confirmation indicating that 18 pages, including this letter, were sent on July 10 by fax to the Tribunal. This letter also states that the applicant was inadvertently sent out to the City of Toronto Human Rights Office at Metro Hall”.
A letter dated July 8, 2010 addressed to the Tribunal at 180 Dundas St., W. 7th Fl. Toronto, Ontario. It states that it was delivered by fax and hand but there is no confirmation of receipt shown. The Tribunal did not have an office at that address at that time.
A letter dated July 12, 2010 addressed to the Tribunal at 665 [sic] Bay Street 14th Fl., Toronto, Ontario, stating that it encloses an application and also that “this application was inadvertently sent out to other Human Rights offices since June 5th 2010. I am unsure of the correct department.” This letter bears a date stamp showing that it was received by the Tribunal on July 14, 2010.
21It should be noted that, despite the representative’s assertion that correspondence was enclosed supporting the position that June 5, 2010 should be treated as the filing date of the Application, none of the correspondence above is dated June 5.
22The applicant’s representative states that the reason the Form 1 was dated August but not submitted until November 12 was that she was under the erroneous impression she had to submit medical documents with the Application, which were ultimately not forthcoming.
23In its submissions, the respondent points out that despite the assertion in the affidavit of Lydia Ricardo that the applicant initially submitted an application to the City of Toronto Human Rights Office on June 5, 2010, the letter to that office, which is attached to the applicant’s submissions of December 13, bears a date of July 5, 2010.
24In reply to the respondent’s submissions, the applicant’s representative states that
The Application was sent out on June 5, 2010. It was returned having been sent to the wrong address. It was re-mailed with a July 5 covering letter. The delay resulted only from not being aware until the letter was returned that the HRTO had not received the Application sent out on June 5, 2010.
DECISION
25Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
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.
26Section 34(3) states:
34(3) An application under subsection (1) shall be in a form approved by the Tribunal.
27Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.
28As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.
29The applicant must therefore 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
30At the outset, I deny the applicant’s request to amend the Application to include references to the alleged refusal or failure to pay termination pay under the Employment Standards Act until April 2010, and the alleged refusal by the respondent on July 8, 2009 to allow the applicant to have recourse to a Peer Review process. The issue of delay has been known to the applicant since the Application was sent to the Tribunal in November 2010 and certainly since the respondent filed its Response in March 2011. Despite this, the applicant waited until December 2011, more than two years after one of the new allegations occurred and more than one year after the other new allegation, to seek to add these issues. It is apparent from the timing of the request to amend the Application, and indeed from the applicant’s own submissions, that the request is made as a response to the prospect that the Application may be found to be untimely and as an effort to assert that there is a “series of incidents” within the meaning of section 34(1).
31The new allegations themselves disclose no link to the grounds of discrimination relied on by the applicant beyond the broad assertion that they are a continuation of discrimination.
32As the Tribunal stated in Malcolm v. Centre for Addiction and Mental Health, 2011 HRTO 1848, “an applicant cannot make what would otherwise be an untimely Application timely by simply tacking on allegations that occurred after the fact” (para. 30). I therefore decline the request to amend the Application.
33Turning to the Application before me, I find that it was filed on November 12, 2010. Rule 6 of the Tribunal’s Rules of Procedure require that applications be filed in Form 1, with related supplemental forms. The Rules give authority to the Tribunal to send an Application back to an applicant where it is not sufficiently complete to allow it to be processed, with a deadline for completing the Application. If an applicant then re-submits an Application which can be processed, the Tribunal will treat it as having been filed on the day it was originally filed.
34In this case, the materials faxed to the Tribunal on July 10, 2010, consisting of the supplemental Form 1-A, were not dealt with under Rule 6 as they did not contain a Form 1. The applicant was not told he could re-submit a complete application which would then be treated as having been filed on July 10. The entire set of documents was returned to the applicant without the Tribunal assigning them a file number.
35Arguably, the Tribunal could waive strict compliance with Rule 6 and treat the material sent by fax on July 10, 2010 as an incomplete Application that was subsequently completed, and assign the Application a filing date of July 10, 2010. But even if I had the discretion to do so, I would not be inclined to exercise it in the applicant’s favour given the additional four month delay between July 2010 and November 2010 for which there is no reasonable explanation. In this respect, I do not accept that the representative’s erroneous impression that the Application should be submitted with medical documents justifies such a delay.
36I also do not find it reasonable for the representative to assume, as suggested, that if she waited from July 2010 to November 2010 to submit the Application in Form 1, it would be given a filing date based on its submission in July. The representative was clearly aware of the deadline for filing an Application, given the flurry of activity approximately a year following the applicant’s dismissal. In the circumstances, it was incumbent on her to pursue the matter with greater diligence or at the very least seek more information about the deadlines before choosing to wait some further four months to file the Form 1.
37The applicant’s representative goes farther, and submits that a good faith effort to file an application with the wrong office should be taken into account in determining the filing date of the Application. On this basis, she submits that June 5, 2010 should be treated as the filing date.
38I have some difficulty with this submission for several reasons. Even if I have the authority to determine that an application is filed in a timely manner for the purpose of section 34(1) where a mistaken attempt is made to file it with another entity, this would only assist the applicant if June 5, 2010 was established as the date that attempt was made. However, I find the information provided by the applicant on this issue to be unreliable and ultimately I have decided to give weight only to the documents and the information contained on the face of those documents, and not to the affidavit or other assertions. Based on these documents, the applicant’s first attempt to file an application with the City of Toronto (an entity completely unrelated to any aspect of this Application), was on July 5, 2010, a date which would still be beyond the time limit for filing an Application.
39I come to the conclusion that the information is unreliable for the following reasons:
Initially, the applicant filed an affidavit with the Tribunal referring to a letter dated June 5, 2010 and one dated July 8, 2010 but only provided a copy of the latter;
Only after the Tribunal directed the parties to file further submissions did the applicant purport to file the documentation establishing that the representative had sent an application to the City of Toronto on June 5, 2010. However, the documentation consisted of a letter dated July 5, 2010, and not June 5, 2010 a discrepancy which was left unexplained and was patently at odds with the affidavit of Lydia Picardo as well as the previous submissions.
This discrepancy was pointed out by the respondent, at which point for the first time the applicant’s representative asserted that a letter had been sent to the City on June 5, 2010 and returned because of an incorrect address, and then re-sent on July 5, 2010. In other words, for the first time, the applicant asserted that two letters were sent to the City of Toronto, one on June 5, 2010 and one on July 2010. No additional supporting documentation was provided for this assertion.
The applicant submitted in reply to the respondent’s submissions that “the delay resulted only from not being aware until the letter was returned that the HRTO had not received the Application sent out on June 5, 2010”, which is at odds with the fact that even after the date the letter was purportedly returned, it was sent to the City of Toronto on July 5, 2010 and not to the Tribunal.
40Ultimately, even if it were relevant to my findings under section 34(1), I find I have no reliable evidence establishing that an attempt was made to file an application by mail with the City of Toronto on June 5, 2010. The best that can be said is that the applicant attempted to file an application by mail with the City of Toronto on July 5, 2010, and then attempted to file an application by fax with the Commission and with the Tribunal on July 10, 2010.
41Although I have found above that the date of the filing of the Application is November 12, 2010, whether it is that date or July 10, 2010, or July 5, 2010, it is still untimely. In order to convince me that the delay was incurred in good faith within the meaning of section 34(1), the applicant must provide a reasonable explanation for why he did not file the Application in a timely manner. The applicant’s representative has provided extensive submissions about the events in 2010 and, based on those submissions and the information before me, I have found that any attempt to file the Application was not made until July 5, 2010. But she has provided no information about why the applicant did not attempt to file this Application until then, given that his dismissal had occurred on June 30, 2009.
42In his submissions of December 13, 2011, the applicant referred to having been under treatment by a family physician for depression, and having been diagnosed with “serious and severe prolonged depression” and asks for additional time to provide a report substantiating his medical condition. In his reply submissions of December 28, he states that his disability is not being relied on as the reason for the delay. It is therefore unclear whether he takes the position that his depression left him unable to file the Application in a timely manner. It is unnecessary for the applicant to provide a medical report. Even if I accept that the applicant has been under treatment for depression, this has not resulted in any inability to take action against the respondent. Following his dismissal the applicant filed a complaint with the Ministry of Labour over unpaid termination pay, which resulted in a hearing on January 13, 2010 at which he was represented by his legal representative. He has been represented by the same representative throughout the course of this Application and has not apparently been unable to give directions on his Application. I do not therefore accept that any depression that the applicant suffers provides a reasonable explanation for the delay in filing the Application.
43I therefore conclude that the Application has been filed beyond the time specified in section 34(1), and the delay in filing it was not incurred in good faith.
44Accordingly, the Application is dismissed.
Dated at Toronto this 17th day of January, 2012.
“Signed by”
Sherry Liang
Vice-chair