Fedorowicz v. Teamsters Local Union 230, 2012 HRTO 2276

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ryszard Fedorowicz

Applicant

-and-

Teamsters Local Union 230

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: December 5, 2012

Citation: 2012 HRTO 2276

Indexed as: Fedorowicz v. Teamsters Local Union 230

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), in which the applicant alleges that the respondent infringed his rights under the Code.

2Section 34 of the Code provides as follows:

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.

3According to the Application, the date of the last incident to which the Application relates occurred in March 2011. The Application was filed with the Tribunal approximately 17 months later, on August 8, 2012.

4Accordingly, on October 18, 2012, the Tribunal sent the applicant a Notice of Intent to Dismiss the Application on the basis of delay, because it appeared that the Application had been filed more than a year after the date of the last event upon which the Application was based and the applicant had not cited any facts that might establish that the delay in filing the Application had been incurred in good faith. The Tribunal directed the applicant to make submissions addressing the issues identified in the Notice of Intent to Dismiss.

5On November 7, 2012, the applicant filed written submissions in response to the Notice of Intent to Dismiss. In those submissions, the applicant submits that the reason for the delay in filing his Application was that he tried every other possible avenue to resolve his issues with the respondent union before making an Application under the Code, including telephone calls, letters and an application to the Ontario Labour Relations Board.

6As noted above, s.34(2) of the Code provides that a person may not apply to the Tribunal more than a year after the last incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.

7In order to establish that the delay in filing his Application was incurred in good faith, the applicant must provide a reasonable explanation for the delay. In my view, he has not done so.

8The fact that the applicant was attempting to resolve his issues with the respondent through other means, though laudable, is not a reasonable explanation for the applicant’s failure to comply with the statutory time limit for enforcing his rights under the Code. It is well-established that waiting to see whether human rights complaints can be resolved internally or through other legal proceedings before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application: Cottle v. Toronto Police Service, 2012 HRTO 6; Huo v. University of Western Ontario, 2012 HRTO 198; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

9In the circumstances, I am not satisfied that the delay in filing the Application was incurred in good faith. Accordingly, the Tribunal has no power pursuant to section 34(1) of the Code to hear this Application. In the circumstances, it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay. Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579.

10The Application is dismissed.