Hebert v. Kawartha Carstar Collision, 2012 HRTO 1296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Hebert

Applicant

-and-

Kawartha Carstar Collision

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: June 29, 2012

Citation: 2012 HRTO 1296

Indexed as: Hebert v. Kawartha Carstar Collision

WRITTEN SUBMISSIONS

Jennifer Hebert, Applicant

No submissions

Introduction

1This is an Application filed on September 15, 2011, 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 sex.

2The Application alleges that the last incident of discrimination occurred on September 10, 2010, more than one year prior to the filing of the Application.

3On March 7, 2012, the Tribunal sent the applicant a Notice of Intent to Dismiss, advising the applicant that it appears that the Application is outside the Tribunal’s jurisdiction, as it was filed more than one year after the last incident of discrimination described in the Application and it did not appear that she had cited facts that constitute “good faith”. It advised her that she must provide written submissions on the issue of delay on or before April 6, 2012 and stated that if she did not file written submission within the required time, the Tribunal may either:

a. make its decision based only on the information in the Application;

b. consider the failure to respond as an abandonment of the Application and dismiss it on that basis.

4The applicant has failed to respond to the Notice and the time for doing so has elapsed.

Background

5By way of explanation for the delay, the applicant states in her Application that on November 19, 2010, her mother was diagnosed as terminally ill, and that she was caring for her mother until her death on February 15, 2011. She stated that her son was born on April 20, 2011, and that her fiancé was laid off from his employment on May 21, 2011. She stated that she completed her Application on September 8, 2011, and “express posted it as soon as I possibly could”.

Decision

6Section 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.

7As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

8Although the Application is filed only a few days after the one-year deadline the applicant must nevertheless establish that the delay was incurred in good faith. The Tribunal has no authority to accept even brief delays beyond 12 months, unless good faith has been established. This is because the Tribunal’s power to hear and determine human rights Applications is based on the Code and the Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith.

9The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner.

10As noted, the applicant did not provide any submissions in response to the Tribunal’s Notice. However, she did provide some explanation for the delay in response to question 7(d) of the Application which asks, “if you are applying more than one year from the last event please explain why”.

11I have considered this explanation absent any further submissions from the applicant. While there are understandable reasons for the applicant not filing her Application immediately after the final alleged incident of discrimination, the applicant had one year within which to do so, and in fact she states that she had her Application prepared prior to the expiry of the one-year deadline. She does not, however, provide any reason for her inability to file the Application with the Tribunal within the one-year period, other than to say she sent it by express post as soon as she could. I do not find that the Applicant has sufficiently explained why she was not able to file her Application within the required one year time frame.

12In dealing with requests that Applications be considered outside the one-year limitation period the 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 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. I find, based on the information before the Tribunal, that the applicant has not demonstrated why she could not meet the required deadline and that the delay in filing this Application was not incurred in good faith as required under s. 34(2) of the Code.

13Given the finding that the delay was not incurred in good faith, it is not necessary for me to consider the question of whether anyone has been substantially prejudiced by the delay.

14I find that the circumstances in subsection 34(2) do not apply to the facts before me. This Application cannot proceed under subsection 34(1) of the Code and is therefore dismissed.