Fisher v. Invest Hotels GPIII Ltd. Comfort Inn Westmont Hospitality, 2012 HRTO 1485

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Fisher

Applicant

-and-

Invest Hotels GPIII Ltd. Comfort Inn Westmont Hospitality

Respondent

DECISION

Adjudicator: Ena Chadha

Date: July 31, 2012

Citation: 2012 HRTO 1485

Indexed as: Fisher v. Invest Hotels GPIII Ltd. Comfort Inn Westmont Hospitality

1This Application was filed on May 28, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). The Application did not identify a Code ground or social area.

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 March 24, 2010, that being the date she was informed at a meeting facilitated by the Workplace Safety and Insurance Board (“WSIB”) that the respondent did not have work for her. The applicant indicated that for the past two and a half years she has been asking the respondent to treat her fairly by paying her severance and termination with no result.

3By correspondence dated June 25, 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 the grounds and social areas of the Application, the Notice indicated that the Tribunal may not have jurisdiction over the Application because 1.) it appears that the Application was filed more than one year after the last incident of alleged discrimination and 2.) the Application appears to fail to identify any specific acts of discrimination within the meaning of the Code. The Notice directed the applicant to complete the Application and file submissions on or before July 25, 2012 with respect to the two jurisdictional issues.

4On July 23, 2012, the applicant filed submissions with respect to the issue of delay and indicated that she was alleging the ground of disability with respect to the social area of employment.

DECISION

5The applicant alleges that she was dismissed in 2010, after twenty three years of services, due to her disability. The applicant alleges that at a meeting in March 2010 the respondent claimed that it did not have any suitable work for her because of her right hand restrictions. The applicant alleges that she was dismissed without any notice. The applicant alleges that the respondent failed to provide her with severance and termination pay and that when she attempted to raise the matter with representatives of the respondent she was advised that another meeting would be set up to review her benefits.

6The applicant alleges that she waited for several months for the respondent to set up a meeting; however, she was never contacted. The applicant indicates that after many months she spoke to her WSIB Case Worker who told her that she could still get severance and that it would not affect her WSIB benefits. The applicant alleges that she attempted to communicate her concerns to the respondent; however, the respondent never followed up with her.

7The applicant indicates she also consulted the Labour Board and that she was informed that she was entitled to termination pay because of her length of employment. The applicant alleges that, despite the fact that she advised the respondent that she would pursue her concerns with the Labour Board or human rights, the respondent did not address her concerns.

8Section 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.

9The 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.

10The 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. 2009 HRTO 674.

11As 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.

12It appears the alleged events occurred at minimum two 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 her concerns by providing her with compensation. The applicant also appears to suggest that the discrimination was on-going for a period of time because the she engaged in various communications with a respondent representative in attempting to obtain compensation.

13Based on the applicant’s submissions, it appears that since March 2010 applicant has been aware and concerned that her employment was allegedly unfairly terminated by the respondent. The applicant’s submissions clearly indicate that she repeatedly attempted to communicate her concerns to the respondent and sought the advice of WSIB and Labour Board and even alerted the respondent to the fact she would pursue a human rights claim. However, although the applicant attempted to seek redress with the respondent and with the assistance of the other agencies, the applicant did not file a timely Application. There is nothing in the applicant’s materials that suggests the applicant’s situation prevented her from pursuing her rights under the Code.

14With respect the applicant’s contention that she 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.

15I do not accept the applicant’s suggestion that she continued to experience discrimination because the respondent did not respond to her communications or address her concerns. 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.

16I do not accept 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

17Accordingly, the Application is dismissed on the basis that it is outside the Tribunal’s jurisdiction because of delay.