Suraj Persad v. Toronto District School Board, 2012 HRTO 1901

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suraj Persad Applicant

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: Naomi Overend Date: October 5, 2012 Citation: 2012 HRTO 1901 Indexed as: Persad v. Toronto District School Board

APPEARANCES

Suraj Persad, Applicant Hermie Abraham and Shelina Ali, Counsel

Toronto District School Board, Respondent Grant Bowers, Counsel

Introduction

1The applicant filed this Application, which alleges discrimination with respect to employment because of creed, on June 15, 2011. The applicant advised that the last incident of alleged discrimination took place on February 3, 2010, more than 16 months before he filed his Application.

2In its Response, the respondent asked that the Application be dismissed on the basis of delay and on the basis that the applicant had filed a grievance which had appropriately dealt with the subject matter of the Application. By letter dated January 26, 2012, the parties were advised that the Tribunal would hold a preliminary hearing in which the parties would be provided the opportunity to make oral submissions on these issues.

3This preliminary hearing was originally scheduled for May 9, 2012, but it did not proceed as the applicant had recently retained counsel, who had prepared a book of documents that was incomplete. Counsel for the respondent objected because the book was given to him at the last minute and was clearly missing key emails. The parties agreed to adjourn the preliminary hearing to June 20, 2012.

4The applicant testified on June 20, 2012, with respect to his reasons for not filing his Application within the one-year limitation period. His testimony included reference to advice given to him by a union representative that he had not previously referred to in any of his pleadings or submissions. The respondent was granted an adjournment to July 10, 2012, so that it could call this individual as a witness in response.

5The preliminary hearing was further adjourned to September 18, 2012, when the applicant’s counsel advised, shortly before the hearing date, that she was no longer counsel of record. On that date, I heard the remaining evidence and argument on the delay issue.

6The parties agreed that if I did not dismiss the Application on the basis of delay, they would file written submissions on whether the grievance had appropriately dealt with the subject-matter of the Application. As discussed in greater detail below, I have found that the delay was not incurred in good faith. Accordingly, it is not necessary for the parties to file submissions on whether the Application is barred by virtue of s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Decision and analysis

7An application that is filed more than one year past the last incident of alleged discriminatory conduct may be barred by virtue of s. 34 of the Code, which provides:

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.

8It is common ground between the parties that the Application was filed outside the one-year time limit found in s. 34(1). The question for the Tribunal, therefore, is whether the applicant has established good faith and lack of substantial prejudice as required by s. 34(2). While the respondent also asserted in its written submissions that it was prejudiced by the delay, the focus of the preliminary hearing in this matter was whether the delay was incurred in good faith.

9As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

10The applicant testified that he always had the desire to pursue his matter before the Tribunal, but that he expected his union, the Ontario Secondary School Teachers Federation (“OSSTF”) to initiate the process and represent him. Instead, the OSSTF filed a grievance, and at the end of that unnecessarily protracted process, advised him to pursue his matters before the Tribunal. Once he was aware of the final outcome, he pursued his Application with the Tribunal expeditiously.

11In addition, the applicant testified that he spoke with the Human Rights Legal Support Centre (the “Legal Support Centre”) in early 2010 – while the grievance was ongoing – and was advised that he should initially pursue his matter through the grievance process before submitting an application with the Tribunal. He asserts that his reliance on that advice was in good faith.

Did the Legal Support Centre Advise the Applicant to Pursue the Grievance First?

12As noted above, the applicant was asked in his Application for the date of the last incident of discrimination and then asked to provide an explanation for why he was filing more than a year after that last incident. The applicant stated:

In May 2010 I contacted the Human Rights Legal Support Centre to obtain information about filling [sic] a claim as an individual but I was told that the matter should initially be pursued through the Union Grievance Process.

13Prior to the Application being served on the respondent, the Tribunal issued a Notice of Intent to Dismiss for delay, to which the applicant was required to file written submissions. These written submissions mirror the explanation provided in his Application, although the applicant is more specific about the date on which he contacted the Legal Support Centre: May 20, 2010.

14In advance of the preliminary hearing, the applicant’s then counsel obtained the intake records of the Legal Support Centre and an explanatory letter from its Legal Director (Policy and Programs), Toby Young. These documents were accepted for the truth of their contents by the respondent.

15The intake notes show that the applicant did, in fact, contact the Legal Support Centre on May 20, 2010, but apparently about an unrelated claim having to do with his role as a Hindu minister at a hospital. There is no reference to his claim with respect to the Toronto District School Board and, accordingly, no reference to a grievance. The notes reflect that the applicant was told by the Intake staff about how to access the application forms on the Tribunal’s website.

16In Mr. Young’s letter he states the following:

It is the Centre’s position that we did not advise Mr. Persad as he has indicated to the Tribunal. Our records do not indicate that he raised the matter of his grievance on May 20, 2010 or that we advised him to pursue that grievance process first before filing a human rights application. Our intake staff are trained to include this information in their intake notes and this kind of information is routinely included when provided by a caller. When a caller advises our intake staff that they have already commenced a process in another forum, our staff are trained in further discussion as appropriate in the circumstances, including:

• what state the other process is at;

• where the caller should be assisted by one of our lawyers to determine which process is preferable;

• whether an application should be file and deferred. [Emphasis added]

17Other than the applicant’s bald assertion that he was given this advice, the evidence does not support the applicant’s position that he was given, and relied upon, the Legal Support Centre’s advice that he ought to pursue his grievance first. I am not prepared to accept the applicant’s testimony in this regard. It is, therefore, not necessary to consider the applicant’s legal argument concerning reliance on incorrect advice.

Was the Applicant Misled by the Actions of the OSSTF?

18It was the applicant’s position that he directed the OSSTF to file a human rights application, but that it disregarded his wishes and filed a grievance instead. It was his position that this grievance was ultimately resolved in a manner that failed to recognize and compensate him for the loss arising from the infringement of his rights. By the time this happened, he had already missed the time limit set out in s. 34(1) of the Code.

19The applicant testified in response to questions put to him in cross-examination that early on in the process (i.e., February 2010), he spoke to Jane Ste. Marie, a rep at the provincial office of the OSSTF, about filing an application. He testified that she told him that he should speak to his reps at District 12, and get them to refer the matter to the Provincial Office, which would handle the application to the Tribunal. The applicant did not refer to this conversation in his testimony in-chief, nor did he refer to it in any of his submissions to the Tribunal on delay.

20Ms. Ste. Marie was subpoenaed by the respondent. She testified that she did have a conversation around the time suggested by the applicant, but that she did not give him the advice that the Provincial office would file an application to the Tribunal. She said that the OSSTF does not do this as it has the grievance process for resolving workplace disputes, including those that involve a member’s human rights. She said she would have referred the applicant to District 12 for the sole purpose of filing a grievance.

21I am unable to accept the applicant’s testimony that he was given this advice by Ms. Ste. Marie in light of her denial, the fact that such advice was improbable and the failure of the applicant to raise it earlier. I am also unable to accept the applicant’s position that he was “misled” by the OSSTF into believing that they would take care of his human rights application.

22The email record supplied by the applicant supports his position that at the outset he told his OSSTF reps at District 12 that he wished them to file an application with the Tribunal on his behalf rather than pursuing a grievance. However, the emails in response are equally clear that the OSSTF made no efforts to file an application and, indeed, pursued a grievance. That is, despite the applicant’s stated preference, it would have been clear to him in the months that followed the incident that gave rise to this Application that the OSSTF was only pursuing a grievance.

23It is also clear that the OSSTF reps consulted with the applicant throughout the process concerning the position they were taking (although it is equally clear that they were not necessarily following his direction). Notably, he made it clear on several occasions that he was not happy with the prospective remedy suggested by the OSSTF reps, and wished to be compensated for what he perceived as the wrong perpetuated by the respondent.

24While it would appear from his early email conversations with the District 12 reps that the applicant was under the mistaken belief that the OSSTF would file an application on his behalf, there is nothing in their responses that would have lulled him into believing that they were taking any responsibility for the application to this Tribunal. Moreover, the email correspondence from the OSSTF does not, in any way, suggest that the applicant was precluded from pursuing an application on his own while at the same time also pursuing his grievance.

Conclusion

25In summary, I have made the following findings of facts with respect to whether the delay was incurred in good faith:

• The applicant had formed the opinion from the outset (i.e., February 2010) that his dispute with the respondent was a violation of his human rights.

• By May 2010 – well within the one-year time limit – the applicant had been told how to access the application forms on the Tribunal’s website, albeit with respect to another matter.

• Although he told the OSSTF that he wanted it to file a human rights application on his behalf, at no point did any of its representatives advise him (directly or indirectly) that they would do this for him. Instead, the OSSTF made it clear that it was pursuing a grievance on his behalf.

• At no point was he misdirected by either the OSSTF or the Legal Support Centre that he would have to wait until his grievance was concluded before pursuing an application to this Tribunal.

26This Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There were no extenuating circumstances in this case which prevented the applicant from filing a separate human rights application during the period when his grievance was being pursued.

27Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.

28The Application is dismissed.