Finlay v. Bruce-Grey Catholic District School Board, 2012 HRTO 2152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Finlay

Applicant

-and-

Bruce-Grey Catholic District School Board, Bruce MacPherson, Jason Charron and Murray Kuntz

Respondents

decision

Adjudicator: Ena Chadha

Date: November 15, 2012

Citation: 2012 HRTO 2152

Indexed as: Finlay v. Bruce-Grey Catholic District School Board

WRITTEN SUBMISSIONS

Elaine Finlay, Applicant

Self-represented

1The applicant filed this Application on September 28, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of record of offences and association with an individual identified by a Code ground and reprisal.

2Based on the applicant’s narrative, it appears that the applicant was dismissed because she was accused of harassing a co-worker. Although the applicant indicated in her narrative that her employment was terminated on October 6, 2010, the applicant’s response to Question 7 of the Application Form 1 noted that the date of last event was March 27, 2012. In answering why the Application was filed more than one year after her employment termination, the applicant indicated that she has been trying to find out why she was dismissed and that the March 27, 2012 date referenced when she last corresponded with a lawyer representing the organizational respondent.

3On October 11, 2012, the Tribunal issued a Notice of Incomplete Application and Notice of Intent to Dismiss indicating that the Tribunal may not have jurisdiction over the Application because i) it was filed beyond the Code’s one-year time limit; ii) the Application fails to identify any specific acts of discrimination within the protection of the Code; and iii) the Application alleges reprisal and discrimination on the ground of record offences but fails to describe the alleged reprisal and record of offences discrimination within the meaning of the Code. The Tribunal directed the applicant to file a completed Application and written submissions as to whether or not the Application should be dismissed for lack of jurisdiction.

4The applicant filed answers to complete her Application and written submissions on October 29, 2012. The applicant indicated that she was seeking to remove the ground of record of offences and instead was alleging that she was discriminated against on the basis of her creed. The applicant made several points as to why her allegations of creed discrimination and reprisal are meritorious and asserts that over the last two years she has been trying to find answers to her concerns to no avail. The applicant submits that the Tribunal should proceed with the Application because, since the time of her dismissal, she has contacted numerous individuals and entities related to her employment attempting to obtain more information about the reasons for her dismissal.

DECISION

5Section 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.

6The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

7While the applicant appears to suggest that last event was her correspondence to the organizational respondent’s lawyer of March 27, 2012, the last incident of discrimination alleged by the applicant was the termination of her employment. This Application was filed almost two years after the applicant’s dismissal and, as such, the events alleged in the Application are clearly outside the time period provided under the Code. The Tribunal will not deal with an application filed more than one 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.

8In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207.

9The applicant’s submissions appear to suggest her Application is not untimely because of her on-going efforts to pursue her rights before various individuals and organizations, including the Ministry of Labour Employment Standards Branch, trustees of the respondent organization, Social Services of Bruce County, etc. The applicant also appears to contend that she continues to experience personal and financial hardship because of the alleged unfairness of the dismissal.

10With respect the applicant’s submission regarding her persistent attempts to seek assistance from other organizations, 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.

11With respect to the applicant’s argument that the Application is timely because of the correspondence she exchanged with the lawyer of the organizational respondent, the Tribunal has held that to allow an applicant to revive an out-of-time claim by simply restating old concerns would undermine the purpose of section 34 of the Code. See Seetharam v. Iogen, 2010 HRTO 1811.

12With respect to the applicant’s claims of her continuing experiences of hardship, I note that any alleged continuing effects of the employment termination do not extend the Code’s section 34(1) timeline. A “continuing contravention” pursuant to section 34(1)(b) requires a succession or repetition of separate acts of discrimination of the same character; that is separate contraventions of the Code. One act of discrimination with continuing effects is not a continuing contravention. See Visic v. Ontario (Human Rights Commission), 2008 CanLII 19784 (ON SCDC), 236 O.A.C. 110 (Ont. Div. Ct.), and Mafinezam v. University of Toronto, 2010 HRTO 1495.

13Applying all of the above-noted principles, I conclude that this Application was not brought within the one-year time frame of the Code.

14I find that the applicant has not demonstrated why she could not meet the Code’s one-year deadline. The documentary material provided along with the Application reveals that, during the relevant period of time, the applicant was actively pursuing her concerns through correspondence and communications with numerous individuals and entities. The applicant’s submissions do not meet 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.

15Given that both criteria of good faith and lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice if an applicant has failed to pass the good faith test: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579. Therefore, notwithstanding the absence of substantial prejudice, the Tribunal has no power to relieve against the one-year time limit and does not have jurisdiction to determine an application in situations where the Tribunal is not satisfied that the delay was incurred in good faith.

16In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. As such, it is not necessary for me to consider the other jurisdictional issues.

17Accordingly, the Application is dismissed.