Milijan Jovanovic v. City of Hamilton, 2012 HRTO 201

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Milijan Jovanovic

Applicant

-and-

City of Hamilton

Respondent

DECISION

Adjudicator: Ena Chadha

Date: January 26, 2012

Citation: 2012 HRTO 201

Indexed as: Jovanovic v. City of Hamilton

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on October 28, 2011, alleging discrimination and reprisal with respect to employment on the basis of ancestry, disability, ethnic origin and place of origin.

2Along with his Application, the applicant provided voluminous documents and material regarding a variety of matters, including Privacy Commission complaints, Workplace Safety and Insurance Board (“WSIB”) claims, two previous Ontario Human Rights (“OHRC”) complaints, civil actions, newspaper articles, medical reports and other documents. Based on the applicant’s materials, it appears that the applicant is alleging that he was continuously harassed at work and that the respondent employer failed to provide him with appropriate workplace accommodation of his disability. In response to the Application Question 7, which asks the date of the last discriminatory incident, the applicant stated “May 2000 – present”. However, based on the applicant’s materials, it appears the applicant was dismissed from his employment in 2008.

3On November 24, 2011, the Tribunal issued a Notice of Intent to Dismiss to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

4The Tribunal has not yet delivered the Application to the respondent. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it was filed more than one year after the last alleged incident of discrimination.

5The applicant filed submissions on December 28, 2011 and along with his submissions the applicant provided numerous documents, again including medical reports, legislation excerpts, letters, WSIB records, and other documents.

ANALYSIS

6Section 34 of the Code 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.

7The applicant indicates that the delay was incurred, in part, because he was involved in pursuing his WSIB claims and because of a lengthy arbitration in 2007. The applicant contends that there were delays beyond his control, including his union’s failure to support him and the fact that his WSIB claims were only heard in August 2011. The applicant concludes his submissions by asserting that, from 2000 to present, he experienced chronic health problems worsened by the respondent’s lack of consideration for his situation.

8This Application was filed approximately three years after the termination of the applicant’s employment. The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

9In 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. Canarm, 2009 HRTO 674.

10An application will only be dismissed at a preliminary stage, prior to service on the responding party, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

11The applicant submits two reasons for the delay: (i) health concerns and (ii) on-going WSIB proceedings involving the employer.

12With respect the applicant’s submissions regarding the latter ground (delay due to WSIB claims and arbitration), it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508. The Tribunal has determined that waiting for another legal proceeding is not generally a reasonable explanation for a delay. In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. 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.

13With respect to the applicant’s first reason, his health, I note that the applicant did not assert that his health limited or precluded his ability to file a human rights application Rather the applicant contends that his health worsened because the respondent employer did not accommodate his needs and deliberately delayed the WSIB process.

14In any event, the applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by disability-related concerns. As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992, and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

15I do not find the various medical reports provided by the applicant constitute persuasive evidence that the applicant’s condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion, particularly given the applicant’s pursuit of various other claims, actions and benefits. The documentation indicates that the applicant was actively pursuing his rights elsewhere with the assistance of a paralegal representative and it appears that he waited for the conclusion of his WSIB hearing in August 2011 to file his Application with this Tribunal.

16I do not accept that the applicant’s submissions establish 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.

17In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

18Accordingly, the Application is dismissed.