Todd v. Rouge Valley Health System, 2012 HRTO 2173

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cedric Todd Applicant

-and-

Rouge Valley Health System Respondent

DECISION

Adjudicator: Ena Chadha Date: November 20, 2012 Citation: 2012 HRTO 2173 Indexed as: Todd v. Rouge Valley Health System

WRITTEN SUBMISSIONS

Cedric Todd, Applicant Self-represented

Rouge Valley Health System, Respondent Amanda Hunter and Mireille Khoraych, Counsel

Canadian Union of Public Employees, Local 4365, Affected Party Dave Steele, Counsel

1The applicant filed this Application on August 23, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of age.

2In the Application, the applicant indicated that the last event was the termination of his employment on April 4, 2011. The applicant noted that the Application was filed more than one year after the last event because "Took a long time to put all this down in writing. Depressed." The applicant also noted that he had an outstanding grievance regarding the dismissal.

3On September 28, 2012, the Tribunal issued a Notice of Intent to Dismiss or Defer indicating that the Tribunal may not have jurisdiction over the Application because it was filed beyond the Code's one year time limit or that the Application may be deferred on the basis that there is an ongoing grievance. The Tribunal directed the parties and the applicant's union, as an affected party, to file submissions as to whether or not the Application should be dismissed or why consideration of the Application should or should not be deferred.

4The respondent filed submissions on October 29, 2012 supporting dismissal and, in the alternative, deferral. The respondent asserts that the Application must be dismissed because it was filed more than 4 months beyond the statutory limitation period and that the applicant has not demonstrated that the delay was incurred in good faith. The respondent notes that the grievance is scheduled for arbitration in February 2013.

5The applicant's union filed submissions on October 29, 2012. The union indicates that a grievance was filed on April 4, 2011 and has been referred to arbitration. The union did not take a position on the issues of dismissal or deferral, although notes that some of the facts and issues between the grievance and the Application are similar.

6The applicant filed submissions on October 30, 2012. While the applicant made several points as to why his allegations are meritorious, he did not address the issue of delay. The applicant asks the Tribunal to proceed with the Application.

DECISION

7Section 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.

8The 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.

9This Application was filed approximately 16 months after the last alleged event. 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

10Given 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 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.

11The Application appears to suggest that there are two reasons for his untimeliness: (i) feeling depressed and (ii) his efforts to complete the Application took time.

12In 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. In determining whether an applicant's mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant's ability to file an application.

13The applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by his mental health. 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 also for example Reid v. Ontario March of Dimes; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

14I find that the applicant has not demonstrated why he could not meet the Code's one year deadline. Although the applicant states that he was "depressed", the applicant has not established that he could not have pursued his rights within the timeline mandated by the Code. In fact, the documentary material provided by the respondent reveal that, during the relevant period of time, the applicant was actively pursuing his concerns through correspondence and communications with his employer and by way of the grievance with the union's assistance. 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.

15Accordingly, the Application is dismissed.