HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marc Morrison
Applicant
-and-
Marks Work Wearhouse Ltd., Collin & Diana Parker Sales Ltd.,
Canadian Tire Corporation, Limited and Donna Lodu
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Morrison v. Marks Work Wearhouse Ltd.
APPEARANCES
Marc Morrison, Applicant
Self-represented
Marks Work Wearhouse Ltd., Canadian Tire Corporation, Limited and Donna Lodu, Respondents
S. John Page, Counsel
Collin & Diana Parker Sales Ltd., Respondent
Arthur P. Tarasuk, Counsel
Introduction
1This is an Application filed on November 17, 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 race, colour, ancestry, place of origin, ethnic origin and alleging reprisal. The applicant self identifies as an African-Canadian of Caribbean descent.
2In the Responses filed by the respondents the issue of delay was raised.
3On March 28, 2012, the applicant filed a Reply in which he responded to the issue of delay.
4On April 4, 2012, the Tribunal issued a Notice to the parties advising that a half-day preliminary hearing via conference call would be scheduled in order to address whether the Application should be dismissed because of the delay issue. The hearing was convened on July 12, 2012, during which all of the parties participated.
Background
5The applicant was employed by Mark’s Work Wearhouse Ltd. (“MWW”) from June 16, 2008, until his last day of work on July 26, 2010, holding a number of different positions, his last being Imagewear Coordinator.
6Canadian Tire Corporation, Limited, (“CTC”) is the parent company of the respondent MWW.
7The MWW at which the applicant was employed is located inside a Canadian Tire store which is owned and operated by Collin & Diana Parker Sales Ltd. (the “store”).
8Donna Lodu is employed by MWW as a Human Resource Specialist.
9The applicant alleges that he was subjected for a period of two years, from 2008 until 2010, to “continued abuse, harassment and discrimination” by supervisors. The Application alleges amongst other things that he was subjected to comments and delays by supervisors who were assigned to check employee bags when they were leaving the store at the end of the day. The last incident of this nature occurred on or about June 26, 2010, during which he was asked by employees of the store to open a bag and that he was blocked from entering MWW.
10The applicant raised his concerns with MWW. Eventually, he ceased being an employee of MWW in early August 2010; his last day of work was approximately July 26, 2010. MWW asserts that the applicant resigned from his employment. The applicant denied that he resigned and takes the position that he was terminated from his employment. This is not an issue that needs to be addressed for the purposes of deciding the issue of delay.
11In an email dated August 27, 2010, the applicant filed an informal complaint raising some of the issues identified in the Application. Following that the parties corresponded in an effort to resolve the applicant’s concerns.
12There were further communications between the parties including an e-mail dated April 22, 2011, in which the applicant states that he has “a deadline with respect to this issue with the Human Rights Tribunal”.
13On May 24, 2011, in a meeting, during which Ms. Lodu presented the applicant with a settlement offer which included a full and final release and was open for acceptance until May 31, 2011, the applicant alleges that there was a further incident of discrimination. In the Application he states that he was insulted and stereotyped when Ms. Lodu in casual conversation brought up his background. He states “she referred to my background, as sounds Caribbean and that she didn’t like that!” After which she laughed and said that she did not have to speak to him anymore.
14During the preliminary hearing, I asked the applicant to explain what had occurred during this meeting. The applicant stated that the meeting occurred in a downtown food court in order to accommodate his request that the meeting occur near his school. Since the applicant is studying to become a Chef, Ms. Lodu asked him what dish he would cook for her. The applicant replied that he would cook her some curried goat. Ms. Lodu allegedly responded that the dish sounded Caribbean and said, “I don’t like anything Caribbean”. The applicant stated that Ms. Lodu’s comment that she did not have to talk to him anymore was not related to the above interaction but was at the end of the meeting when it was clear that the conversation had reached an impasse.
15When I asked the applicant how this interaction supported his assertion that this was an incident of discrimination as he alleged, the applicant responded that Ms. Lodu had assumed that the dish was Caribbean because of his race and ethnic background. In fact, the applicant stated that this dish is an Indian dish observed in the United Kingdom. Therefore, Ms. Lodu had stereotyped that the dish was Caribbean because of his ethnic origin and race. A lot of time was spent during the hearing to discuss this last incident of discrimination and the applicant was given the opportunity to make submissions with respect to why he believed Ms. Lodu’s comments to be discriminatory.
Decision
16The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 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.
17The first issue that the Tribunal must determine is the date of the last incident of discrimination. The applicant has alleged incidents of discrimination ending on June 26, 2010, and one incident on May 24, 2011. The applicant has not asserted that there was any incident of discrimination between June 25, 2010 and May 24, 2011.
18I have considered the applicant’s position with respect to the May 24, 2011 incident, and I cannot accept that this is in fact an incident of discrimination for the reasons that follow.
19During the hearing, the applicant clarified that Ms. Lodu was referring to what she thought was Caribbean cuisine. Based on the applicant’s submissions during the hearing it is clear that Ms. Lodu was not referring to his background, as he had alleged in his Application, but to her food preferences.
20In order to accept the applicant’s assertion that this comment is discriminatory, I would have to accept his assertion that curried goat is not a Caribbean dish and that Ms. Lodu’s belief that it was is somehow discriminatory and related to the applicant’s ethnicity. I am not prepared to accept the applicant’s logic that this interaction with Ms. Lodu was discriminatory. Ms. Lodu’s comment, if said, was related to her food preferences. In these circumstances, I do not accept that a comment which indicates that she does not like Caribbean dishes can be discrimination for the purposes of the Code.
21Therefore, the last incident of alleged discrimination occurred on June 26, 2010, which is almost 17 months prior to the Application being filed with the Tribunal, well outside the statutory one-year limitation period.
Was the delay incurred in good faith?
22The Tribunal has the jurisdiction to accept an application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. For the purposes of s.34(2) of the Code. the applicant must provide a reasonable explanation for the delay. See, for example: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.
23The applicant argued, that if the Tribunal found that the Application was filed outside of the one-year time limit, that the delay was incurred in good faith because he was he was trying to resolve the matter directly with his former employer. Further, he stated that he did not know who the proper parties to the Application should be.
24Having reviewed the circumstances of this case, I do not accept that the delay was incurred in good faith. With respect to the applicant’s allegation that he did not know who the proper parties to the Application were, I find that this is not a reasonable excuse. Clearly, he knew by whom he was employed and provided, in his Reply, some paystubs which identify his employer. Further, he received a letter dated October 8, 2011, which clearly identified the contact information for the store. Regardless, the applicant could have filed his Application and identified the store and his employer and the Application could have been served on these parties at their business address.
25With respect to the argument of on-going negotiations and “good faith”, the Tribunal has found in Colbeck v. Pinecrest-Queensway Community Health Centre, 2010 HRTO 1435, that it is not a reasonable explanation that the applicant was trying to resolve the matter.
26Having considered the circumstances of this case, I find that the applicant was aware of his right to file this Application and that there was a deadline at the Tribunal. His explanation that he was trying to resolve the issue with the respondents is not a reasonable explanation for the delay. The ability to resolve a complaint and to file an Application is not mutually exclusive. Further, it was clear that the applicant was not accepting MWW’s offer to settle in May 2011 and that he could have filed a timely Application at that time. He has not provided the Tribunal with a satisfactory explanation for his failure to do so.
27Given my finding that the delay was not incurred in good faith, I need not address the issue of prejudice.
Order
28I find that the Application is outside of the jurisdiction of the Tribunal because it was not filed within one year of the last incident of discrimination. The Application is dismissed.
Dated at Toronto, this 28th day of September, 2012.
“Signed by”
Geneviève Debané
Vice-chair