HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alan Boswell
Applicant
- and-
NCR Canada, Corporate Recruiters and Nick Hames
Respondents
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Boswell v. NCR Canada
APPEARANCES / wRITTEN SUBMISSIONS BY
Alan Boswell, Applicant ) Self-represented
NCR Canada and Nick Hames, ) David I. Wakely, Counsel Respondents )
Corporate Recruiters, Respondent ) Gabrielle Scorer, Counsel
1Alan Boswell has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of place of origin, sexual orientation, family status and marital status. He has alleged that the respondents interfered with his employment by spreading false rumours about him. The Application was filed on May 31, 2011.
2On its own initiative, the Tribunal scheduled a summary hearing to determine if the Application has a reasonable prospect of success. The Case Assessment Direction identified two issues: the timeliness of the Application and whether the applicant could point to evidence that would prove a link between the respondents’ alleged actions and the prohibited grounds cited.
3The respondent Nick Hames was an NCR employee. He attended the hearing and was represented by counsel for NCR.
4For the reasons set out here, I have determined that the Application is untimely and should be dismissed. I therefore do not need to consider whether the applicant can demonstrate a link or connection between the allegations raised and discrimination under the Code.
5Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents.
6The allegations in his Application refer to events over an 11 year period. The applicant stated that the most recent events at issue involved the actions of an individual who is not a respondent and whom the applicant has never met. He could not establish that this individual had a connection with any of the respondents. At the summary hearing, he agreed that the allegations against the respondents were beyond the one-year time limit.
7The applicant stated that he filed the Application because he had not received appropriate recourse through other legal avenues, such as contacting lawyers and the police.
8The respondents submitted that the Application was untimely and that no reasonable explanation was provided for the delay in filing the Application. The respondents also submitted that there would be considerable prejudice to defend allegations over an 11-year period.
9I am satisfied that the allegations against the respondents relate to alleged events that happened more than one year before the date of the filing of the Application.
10The Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for his failure to pursue his rights under the Code in a timely manner. The only justification for the delay provided by the applicant was that he was pursuing other legal avenues. Waiting for the conclusion of another legal proceeding before pursuing rights under the Code has not been accepted by the Tribunal as a good faith reason for a delay: Mu v. Cargill Foods, 2011 HRTO 846, at para. 42. Similarly, pursuing other legal avenues is not a good faith reason for the delay in this case.
11I find that the applicant has not met the onus on him to demonstrate that the delay in filing his Application was “incurred in good faith” as required under the Code.
12In the absence of a good faith reason for the delay, it is not necessary for me to consider whether substantial prejudice would result from the delay: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.
13The Application is dismissed.
Dated at Toronto, this 30th day of January, 2012.
‘Signed by”
Ian R. Mackenzie
Vice-chair