Gibbs v. Canadian Wireless Communications Inc., 2012 HRTO 1732

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Gibbs Applicant

-and-

Canadian Wireless Communications Inc. Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: September 13, 2012 Citation: 2012 HRTO 1732 Indexed as: Gibbs v. Canadian Wireless Communications Inc.

WRITTEN SUBMISSIONS

Tammy Gibbs, Applicant Samantha Hayward, Counsel

Canadian Wireless Communications Inc., Respondent Allison Taylor, 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 sex and pregnancy.

2The Application relates to the applicant’s employment with the respondent and the termination of that employment on October 4, 2010. The applicant alleges that her pregnancy was a factor in the termination.

3Section 34 of the Code provides as follows:

34. (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.

4The Application was filed on August 21, 2012, which was more than one year after the termination of the applicant’s employment on October 4, 2010.

5In the Response, the respondent asked the Tribunal to dismiss the Application because it was not filed within one year of the last incident of alleged discrimination. In her Reply, the applicant asserts that there was a good faith explanation for the delay and that no substantial prejudice would result to the respondent as the respondent was well aware of the allegations of discrimination.

BACKGROUND

6According to the Response, the respondent is a corporation incorporated under the laws of Ontario and carries on the business of sales of wireless communications and other devices in Ontario.

7Some such businesses are federally regulated and so fall under the jurisdiction of the federal Canadian Human Rights Commission and not under the provincial jurisdiction of this Tribunal.

8The applicant filed a complaint with the Canadian Human Rights Commission (CHRC) in respect of the issues raised in the current Application on November 21, 2011. By decision dated May 2, 2012, the Acting Chief Commissioner determined that “the essential nature of the respondent’s activities do not meet the requirements to fall under Federal jurisdiction.” The Application was then filed with this Tribunal on August 21, 2012.

ANALYSIS

9The complaint was filed with the CHRC on November 21, 2011, which was more than one year after the termination of the applicant’s employment on October 4, 2010. However, according to the Reply, Ms. Hayward first contacted the CHRC on the applicant’s behalf on September 20, 2011, which was within one year of the termination. According to the Reply, at that time the CHRC advised that the time limit had been met and that there was an issue about jurisdiction. Ms. Hayward states that she subsequently followed by with the CHRC on several occasions and that the complaint could not be filed with the CHRC until the applicant received an application package from the CHRC and that this did not occur until some time in November 2011.

10After that, the CHRC did not issue its decision finding it did not have jurisdiction to deal with the matter until May 2, 2012.

11It appears that a copy of the decision was sent to the applicant on May 17, 2012. According to the Reply, a copy of the decision was not received by Ms. Hayward, the applicant’s counsel, until May 23, 2012 and that “due to prior hearing commitments, Applicant’s counsel was not available until the week of June 11, 2012.”

12According to the Reply, Ms. Hayward then researched and reviewed whether to appeal the Commission’s decision. After determining that the Application should be filed with this Tribunal, counsel arranged to meet with the applicant in order to file this Application and the Application was filed on August 21, 2012.

DECISION

13At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code.

14In my view, it is not plain and obvious that the Application should be dismissed at this time because it is not plain and obvious that there is not a good faith explanation for the delay in filing the Application. The Tribunal will continue to process the Application. This is not a final decision on the delay issue and the issue may be raised at a hearing before a member of the Tribunal.