Panacci v. Toronto Transit Commission, 2012 HRTO 1423

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mario Panacci

Applicant

-and-

Toronto Transit Commission and Anne Tyrrell

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: July 20, 2012

Citation: 2012 HRTO 1423

Indexed as: Panacci v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Mario Panacci, Applicant Self-represented

Toronto Transit Commission and Anne Tyrrell, Respondents Lucy Siraco, Counsel

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”), alleging discrimination with respect to employment because of colour and because of association with a person identified by a protected ground. The Application was filed April 16, 2012.

2In the Application, the applicant alleges that the last incident of discrimination occurred on September 7, 2010, more than one year prior to the filing of the Application.

3On June 5, 2012, the respondents filed a Request for an Order During Proceedings (“RFOP”), seeking to have this matter dismissed as untimely and seeking deferral of the due date for their Response to the Application itself, if necessary. Additionally, they filed a Request for a Summary Hearing, submitting that the Application has no reasonable prospect of success, and/or that the applicant has failed to assert a prima facie case of discrimination.

4The applicant has not filed a Response to these Requests, and the time for doing so has now passed.

Background

5By way of explanation for the delay, the applicant states in his Application that he did not file an Application sooner as he was suffering from “trauma and shock” and post- traumatic stress after his termination. He also states that his lawyer told him to proceed only once he was “mentally stable”.

6In his Application, the applicant also indicates that he had initially made the “decision to work with TTC without external involvement to properly investigate my claims along with claims from all other employees working in our toxic work team and IT division”. With his Application, he included a number of emails between himself and the legal department of the corporate respondent (the “TTC”), dating from September 2010 to December 2010. Among other things, the emails indicate discussion of his termination, discussion of an offer of settlement, his request for an extension of the time period for acceptance of the TTC’s offer to settle, the TTC’s extension of the time period for acceptance of the offer to settle, and his effort to negotiate reinstatement to his employment. He has also included a copy of an October 5, 2010 letter from his lawyer, in which his lawyer provided legal advice regarding the applicant’s “employment matter” and the termination of his employment. The letter does not indicate advice to the applicant to wait to proceed until he was “mentally stable”.

7The respondents submit that the Application is untimely, being filed more than one year after the alleged discriminatory event. They further submit that the applicant has not demonstrated that the delay was incurred in good faith.

Decision

8Section 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.

9As 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.

10The applicant must establish that the delay was incurred in good faith. The Tribunal has no authority to accept 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.

11The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why he did not pursue her rights under the Code in a timely manner.

12As noted, the applicant did not provide any submissions in response to the respondents’ RFOP. However, as noted above, he did provide some explanation for the delay in the Application itself.

13I have considered this explanation absent any further submissions from the applicant. The applicant has indicated that he suffered from “post traumatic stress”, but has provided no evidence to substantiate this diagnosis, nor, in any event, has he provided any evidence to indicate that any diagnosis which he may have had rendered him incapable of filing an Application within the statutory one year time limit.

14I also note that in the months immediately following the termination of his employment, he took several steps to assert his rights. He hired a lawyer to advise him with respect to his termination from employment. He corresponded by email over a period of several months with the legal department of the TTC in an attempt to negotiate either a return to work or a better settlement for himself. I find that this level of activity in pursuing a remedy from the TTC was inconsistent with an inability to file an Application with the Tribunal within the one year time limit.

15In 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 he 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.

16Given 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.

17I 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.

18Given my finding that the matter cannot proceed under subsection 34(1) of the Code, it is not necessary for me to consider the respondents’ Request for a Summary Hearing, nor is it necessary for me to consider their request for an extension of time to file their Response.