Joseph Manimalethu v. Kraft Canada Inc., 2012 HRTO 1406

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Manimalethu

Applicant

-and-

Kraft Canada Inc.

Respondent

DECISION

Adjudicator: Ena Chadha

Date: July 19, 2012

Citation: 2012 HRTO 1406

Indexed as: Manimalethu v. Kraft Canada Inc.

WRITTEN SUBMISSIONS

Joseph Manimalethu, Applicant ) Self-represented

Kraft Canada Inc., Respondent ) Michael Horvat, Counsel

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on February 15, 2012, alleging discrimination with respect to employment because of disability. The applicant alleges that he was discriminated against and denied promotion because his employer feared that he would file claims based on his previous workplace injury. The applicant noted that the date of the last discriminatory event was June 10, 2010.

2The respondent filed a Response on May 30, 2012 denying the allegations of discrimination. The respondent asks that the Tribunal dismiss the Application because it was filed more than one year after the last alleged incident of discrimination. The respondent also seeks dismissal pursuant to section 45.1 of the Code on the basis that the Application relates to a grievance that was settled by the employer and the union and the terms of the settlement were upheld by the Ontario Labour Relations Board.

3The applicant filed a Reply and submissions on June 26, 2012. The applicant submits that any delay should be pardoned because 1.) he has been suffering from anxiety and depression since July 2010 and 2.) he first sought to address the workplace issues through his union’s assistance prior to filing his Application with the Tribunal. The applicant’s submissions allege numerous shortcomings in the union’s handling of his grievance and concerns with respect to the Ontario Labour Relations Board alleged failure to analyze his complaint.

ANALYSIS

4Section 34 of the Code states:

(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.

5The 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.

6The threshold question in applying section 34 to the circumstances is what constitutes the “incident” to which the Application relates. Although the applicant noted, in response to Question 7 of the Application, that the date of the last discriminatory incident was June 10, 2010, it appears that this date references a settlement that was offered to resolve workplace grievances. The alleged denial of promotion appears to have been in May 2009.

7This Application was filed on February 2012, approximately 20 months from the date the applicant alleges was the last discriminatory event and over two and half years since when the applicant expected to get promoted. These events are clearly outside the one-year period as set out in section 34(1) of the Code and, consequently, untimely.

8The Tribunal will not deal with an application filed more than one year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

9In 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.

10The applicant submits that the delay was incurred in good faith because since the last alleged event he has been suffering from anxiety and depression, seeking psychiatric treatment and prescribed medications. The applicant also submits that he was unaware of the possibility of approaching the Tribunal and that he gave the union an opportunity to first attempt to deal with the issues.

11On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith.

12With respect to the applicant’s submissions regarding the fact that he attempted to have his union address his concerns, it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508. The materials in the file indicate that the applicant was pursuing his rights through the workplace grievance procedures and later actively pursuing a duty of fair representation complaint against his union with the Ontario Labour Relations Board.

13The Tribunal has determined that waiting for another proceeding is not generally a reasonable explanation for a delay. In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

14The applicant indicates that he was not aware of the existence of the Tribunal and by implication the Tribunal’s limitation period. The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

15The applicant also submits that any delay should be pardoned because he has been suffering from anxiety and depression since July 2010 and unable to file his Application because of these personal issues.

16While the applicant may well have experienced mental health concerns since the time of the events, he has not established that he could not have pursued his rights within the timeline mandated by the Code. The documentation in the file indicates that the applicant launched a duty of fair representation complaint with the Ontario Labour Relations Board sometime in 2010 or 2011 and participated in that process in the summer of 2011 by filing written submissions. As such, I am unable to find that the applicant’s mental disability was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion, particularly in light of the applicant’s participation of the Ontario Labour Relations Board’s process. Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code.

17In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith. Given my findings with respect to the issue of delay, I do not need to address the issues raised by the respondent with respect to section 45.1 of the Code.

18Accordingly, the Application is dismissed.