Lal v. Skechers USA Canada Inc., 2012 HRTO 1900

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Lal

Applicant

-and-

Skechers USA Canada Inc. and Kamlesh Parikh

Respondents

DECISION

Adjudicator: Alison Renton

Date: October 5, 2012

Citation: 2012 HRTO 1900

Indexed as: Lal v. Skechers USA Canada Inc.

WRITTEN SUBMISSIONS

Tracy Lal, Applicant

Self-represented

Skechers USA Canada Inc. and Kamlesh Parikh, Respondents

Evan VanDyk, Counsel

Introduction

1This is an Application filed on October 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 sex (pregnancy).

2The respondents filed a joint Response. In addition to other positions taken, the respondents requested that the Tribunal dismiss the Application as it was filed beyond the mandatory one-year limitation period under section 34(1) of the Code. The respondent submitted that the allegedly discriminatory treatment was October 7, 2010, and the Application was filed October 17, 2011. The applicant filed a Reply in which she submitted, amongst other things, that the “discrimination continues until today. The Applicant[‘s] payroll responsibilities were not restored as of today’s date…”

3Subsequent to receiving a Notice of Mediation, the respondents filed a Request for Order During Proceedings (“RFOP”), dated March 15, 2012, claiming, again, that the Application was untimely, and requesting that the mediation be deferred until the Tribunal addresses the timeliness issue. The applicant responded to the RFOP, opposing the deferral of the mediation. The Tribunal determined in an Interim Decision, 2012 HRTO 1008, that the timeliness issue should be addressed prior to the mediation, and the mediation date was cancelled.

4In that Interim Decision, the Tribunal stated that it appeared that the Application may be untimely as being filed outside the one-year limitation period under the Code, and if determined to be untimely, it could not proceed and would be dismissed. The Tribunal referenced some Tribunal decisions pertaining to timeliness, and provided the parties with an opportunity to file additional facts, documents or case law addressing the timeliness issue. Specifically, the Tribunal directed the applicant to include any good faith reason in her materials to address the potential delay issue.

5Subsequent to the Interim Decision, the applicant filed written materials in which she listed “…the events that led up to [her] filing a case” and supporting documentation (the “written submissions”). The respondents filed written submissions requesting that the Tribunal dismiss the Application as being untimely.

the applicant’s position

6On her Application, the applicant identifies January 2011 as being the date of the last event upon which her Application is based and in response to the question on the Application form “What was the date of the last event?” In the body of her Application, the applicant alleges she advised the respondents that she was pregnant and was hospitalized several times after that announcement. She returned to work on October 7, 2010, following her hospitalization, and upon her return, the payroll functions from her position were removed and she was demoted into the position of administrative assistant. She alleges that she complained to various personnel within the corporate respondent about the change in her position, but provides no details about her internal complaint. She does not allege that the respondents failed to investigate into her concerns.

7In her Reply, the applicant claims that the discrimination continues “until today” as the payroll responsibilities were never restored to her position before she commenced her pregnancy leave on January 23, 2011. She returned to work on January 30, 2012 after her pregnancy leave ended. In her written submissions, the applicant claims that December 2, 2010, should be the date of the last incident. It was on that date, she submits, that she had a meeting with “Kathy” who told the applicant that they would work on a position “that was not demeaning to [her]”. Further, she claims that upon her return to work in January 2012 she was placed into a position different from the position she held before her pregnancy leave, with another employee performing her former position.

8The applicant submits that she made many attempts on her own to “right a wrong”. She claims that “…the stress of being demoted and dealing with a new baby was too much at the time for me to handle” and she claims that she did not know the cut-off date for filing her Application. Had she known it, she “would have made sure that it was done at the time”. She asserts that she is “…an average working wom[a]n and mother without the money and resources to hire someone to handle it for me”.

the respondents’ positions

9In its Response, in addition to denying the allegations of discrimination, the respondents submit that the payroll functions were removed from the applicant’s position on October 7, 2010, because of performance concerns and payroll errors, and she was assigned other tasks. Her rate of pay did not change and she was not demoted. She performed her duties until January 23, 2011, at which point she commenced her pregnancy leave.

10The respondents submit that shortly after the payroll functions were removed, the applicant wrote a letter to the personal respondent in which she alleged that she was demoted as a result of her pregnancy. A member of the respondent’s human resources department investigated into those concerns. A telephone meeting was held with the applicant, the personal respondent, and the human resources representative on November 2, 2010, during which the applicant was advised her position would not be changed, which was confirmed in writing. On November 11, 2010, the applicant advised that she did not consider the matter to be resolved, had sought legal advice, and she intended to file a human rights complaint.

11In its written submissions, and in its RFOP, the respondents request that the Application be dismissed as untimely and that the applicant has failed to identify any further acts of discrimination beyond October 7, 2010.

law and analysis

12The relevant sections of the Code are sections 34(1) and (2) which state:

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.

13In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

14In this case, the Application is essentially about the removal of the payroll functions from the applicant’s position, which took place on October 7, 2010. I find that this is the incident to which the Application relates and the applicant’s subsequent communications with and objections to the respondents in relation to the change in her position, including her written objection to the personal respondent in October 2010, their subsequent meeting in November 2010, and the meeting with Kathy in December 2, 2010, all flow from the October 7, 2010 incident. The applicant had one year from October 7, 2010, to file her Application, that being until October 7, 2011, but instead she filed it on October 17, 2011. Accordingly, the applicant’s Application is filed beyond the mandatory one-year limitation period established in section 34(1) of the Code.

15With respect to the applicant’s submission, as indicated in her written submissions, that when she returned to work in January 2012 following her pregnancy leave she was placed into a different department, it is not clear to me that this is a new allegation of discrimination. This was not raised as an allegation in either her Application nor in her Reply and the applicant has not filed a Request for Order During Proceeding seeking to amend her Application with the inclusion of this new allegation.

16Alternatively, even if it is a new allegation of discrimination, for the purposes of this Application, it is made after her Application was filed and 34(1)(b) requires an Application to be filed within one year after the last incident in a series of incidents. I find in the circumstances of this case that the January 2012 allegation does not form part of a “series of incidents”. The Tribunal’s approach to what constitutes a “series of incidents” examines factors such as whether there is a break in the temporal connection between the incidents and whether the incidents can be viewed as a pattern of conduct. See Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310. The applicant’s new allegation is raised more than one year after the October 7, 2010 allegation and section 34(1)(b) requires a temporal connection. Further, the incidents are over a year apart and the Tribunal has held that lengthy gaps in time between incidents in a putative “series” will interrupt the series. See Lawrence v. Chrysler Canada, 2012 HRTO 1087, at para. 14. To the extent that this is a new allegation of discrimination, the applicant has the ability to file a new section 34 application until January 2013.

17Although the Application was filed a short period of time after the one-year deadline of October 7, 2011, the applicant must nevertheless establish that the delay was incurred in good faith. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2) of the Code. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

18The Tribunal has no authority to accept even brief delays beyond one year, 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. See Farwell v. Northumberland Services for Women, 2010 HRTO 1126, at para. 7.

19In this case, the applicant asserts that the stress of being demoted and dealing with a new baby was too much for her to handle. She attempted to address her issues by herself as she did not have the resources to seek assistance. The applicant claims that had she known about the mandatory one-year limitation period, she would have taken steps to ensure that her Application was filed in a timely manner. The applicant did not address the respondent’s submission that on November 11, 2010, she advised the respondents that she did not consider the issue to be resolved, had sought legal advice and was intending to file a human rights complaint.

20Despite the respondents’ submissions that the applicant advised them on November 11, 2010, that she had sought legal advice and would be filing an application, which suggests that the applicant was aware of her legal rights, even if I accept that the applicant was not aware of her rights, that, by itself and without more, is not sufficient to meet the good faith component of section 34(2). The Tribunal has stated on many occasions that ignorance of one’s rights is not sufficient, by itself, to establish good faith as required within the meaning of section 34(2) of the Code. See, for example, Lutz v. Toronto (City), 2009 HRTO 1137.

21With respect to the applicant’s submission that the delay was incurred because of the “stress of being demoted and dealing with a new baby was too much for her to handle”, the applicant has not provided any medical documentation in support of this position. Even if the applicant experienced stress, I note that she challenged the respondents’ decision to remove the payroll functions during the months of October to December 2010 and after the function was removed from her position. Further, while she did not provide the date that her baby was born, the applicant commenced pregnancy leave on January 23, 2011 and her Application was not filed for a further nine months and does not address the 10-day delay in filing beyond the one-year limitation period. Other than asserting that she was not able to file her Application earlier, she has not provided any further evidence, such as medical documentation, supporting her position that she was incapable of filing her Application within the mandatory time frame. The Tribunal has accepted that a delay may be in good faith because the applicant was medically incapacitated from filing the application within the limitation period; however, it has consistently ruled that it requires medical evidence that the medical condition was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. See, for example, Reid v. Ontario March of Dimes, 2009 HRTO 2207. In any event, the applicant’s claims do not address the respondents’ assertion that in November 2010 she advised the respondents that she intended to file a human rights complaint.

22Most importantly, the applicant asserts that had she been aware of the mandatory limitation period, she would have taken steps to ensure that her Application was filed in a timely manner. This seems to contradict the applicant’s statement that her Application was untimely because she was stressed and parenting a new baby as it suggests that she was capable of meeting that deadline, had she known about it. Accordingly, I find that the applicant has not provided a good faith explanation for the delay in filing her Application.

23The Tribunal has held that if an applicant fails to demonstrate that the delay was incurred in good faith, it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579; Dean v. Brantford Office Machines, 2010 HRTO 385; and Gagne v. Maximum Mining, 2010 HRTO 689.

24I find that the Application was filed beyond the mandatory one-year limitation period under section 34(1) of the Code and the applicant has failed to provide a good faith explanation for the delay in filing her Application. Accordingly, her Application is dismissed.