Maharaj v. Toronto General Hospital, 2012 HRTO 1253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Parasram Maharaj

Applicant

-and-

Toronto General Hospital

Respondent

DECISION

Adjudicator: Ena Chadha

Date: June 26, 2012

Citation: 2012 HRTO 1253

Indexed as: Maharaj v. Toronto General Hospital

1This Application was filed on March 12, 2012, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging discrimination with respect to employment because of disability.

2In response to Question 7 of the Application, which asks the applicant to identify the date of the last event, the applicant indicated that the last event was on February 25, 2010; however, in his explanation for the delay, the applicant indicates that the last event, that being his termination, was 4 years and 9 months ago.

3By correspondence dated May 9, 2012, the Tribunal issued a Notice of Incomplete Application and Notice of Intent to Dismiss (“Notice”) to the applicant. In addition to requiring the applicant to provide information to complete his Application, the Notice indicated that the Tribunal may not have jurisdiction over the Application because it appears that the Application was filed more than one year after the last incident of alleged discrimination. The Notice directed the applicant to complete the Application and file submissions on or before May 29, 2012 with respect to the jurisdictional issue of timeliness.

4On May 28, 2012, the applicant filed a various documents with respect to his health and employment and completed some outstanding portions of the Application. The applicant did not file submissions with respect to the issue of delay and whether or not the Tribunal had jurisdiction over the Application.

DECISION

5The Application alleges that the respondent failed to accommodate the applicant’s disability-related needs when the applicant was required to work in areas that adversely affected his environmental allergies. Although the applicant does not provide details with respect to the events surrounding the termination of his employment, it appears that the applicant ceased employment in either 2008 or 2010.

6In his Application, the applicant indicated that he filed the Application “4 years and 9 months from the last event” because he was talking to a representative of the respondent and trying to give the respondent’s representative an opportunity to fulfill the promise of providing him with compensation or a job.

7Section 34 of the Code provides:

(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.

8The 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.

9The Tribunal’s jurisprudence establishes that the onus is on the applicant to demonstrate that the delay in filing the Application was in good faith. In determining the issue of good faith, factors for consideration include 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.

10As stated in Miller v. Prudential Lifestyles 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.

11It appears the alleged events occurred at minimum two years or possibly over four years prior to the filing of this Application. The applicant appears to suggest that the delay was as a result of waiting for the respondent to redress his concerns by providing him with compensation or a job. The applicant also appears to suggest that the discrimination continues to present day because he continues to be unemployed.

12Based on the documentary materials, it appears that for a number of years the applicant was aware and concerned that he may have been “wrongfully terminated” by the respondent and attempted to communicate his concerns to the respondent. However, there is nothing in the applicant’s materials that suggests the applicant’s situation prevented him from pursuing his rights under the Code.

13With respect the applicant’s contention that he was attempting to seek redress through the respondent, it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller, supra; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

14I do not accept the applicant’s suggestion that he continues to experience discrimination because the respondent has not provided him with compensation or a job. 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. Moreover, to allow an applicant to revive an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code. See Seetharam v. Iogen, 2010 HRTO 1811.

15I do not accept that the applicant’s materials establish that the applicant met the fairly high onus the Tribunal requires to show that the delay in the filing of an Application was incurred in good faith pursuant to section 34(2) of the Code. As such, the Application does not meet the requirements of section 34(1).

CONCLUSION

16Accordingly, the Application is dismissed on the basis that it is outside the Tribunal’s jurisdiction because of delay.