Smit v. Diageo Canada Incorporated, 2012 HRTO 300

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Smit

Applicant

-and-

Diageo Canada Incorporated

Respondent

INTERIM Decision

Adjudicator: David Muir

Date: February 10, 2012

Citation: 2012 HRTO 300

Indexed as: Smit v. Diageo Canada Incorporated

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 11, 2011 alleging discrimination in employment by the respondent on the basis of disability, reprisal and association with a member of a protected group. The Application has not yet been served on the respondent.

2A Notice of Intent to Dismiss (“NOID”) was issued by the Tribunal on November 4, 2011 indicating that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination. The allegations stem from an incident that the applicant states took place on March 28, 2007.

3Included with the applicant’s submissions in response to the NOID are portions of what appeared to be two additional Application forms (Form 1). In addition to further elaboration of some of the issues raised in the initial Form 1, the applicant made what appeared to be a new allegation of discrimination when he returned to work in November 2011. The applicant was out of the workplace from some time in 2007 until November 2011.

4A Case Assessment Direction (“CAD”) was issued by the Tribunal on December 16, 2011 seeking to clarify whether the applicant was seeking to add a new allegation to his Application and whether he was arguing that this new allegation was the last of a series of incidents beginning in March 2007, thereby preserving the entire series of incidents pursuant to section 34(1)(b) of the Code.

5The applicant has responded to the CAD and clarified that he is asserting that the alleged discriminatory action of the employer in November 2011 is one of a series of incidents stretching back to March 2007. The applicant has also added further allegations of discrimination in respect of his return to work which he claims have occurred in December 2011 and January 2012.

THE AMENDMENT ISSUE

6In determining requests to amend Applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See: Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

7I am satisfied that the applicant should be permitted to amend the Application to include the allegations of discrimination beginning in November 2011. Having regard to the factors set out above, the Application is at a very early stage – the Application has not yet been served on the respondent and accordingly, the respondent has not been required to file a Response as of yet. As such, there can be no possibility of prejudice to the respondent at this point by the addition of the allegations of discrimination. The new allegations appear to be issues that the Tribunal has jurisdiction to deal with.

THE DELAY ISSUE

8Section 34 of the Code states, in part:

(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.

9As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside of this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue their rights under the Code in a timely manner.

10As indicated above, the allegations in the Application relate to an incident in March 2007. The applicant has now clarified that he is alleging further discrimination on the part of the respondent beginning in November 2011 when he returned to work and those allegations have been added to the Application. However, there is a gap of more than four years between the incident(s) complained of in March 2007 and the allegations of the applicant beginning in November 2011.

11In response to the Tribunal’s NOID on the basis of delay, the applicant argued that he was distraught after the March 2007 incident. He stated that he experienced an aggravation of a prior workplace injury at that time and took three weeks vacation prior to a surgery for the workplace injury in June 2007, returning to work six weeks after his surgery. The applicant left the workplace shortly thereafter. The applicant also stated that he became involved in a dispute with the Workplace Safety and Insurance Board (WSIB) in relation to the two days he took off work after the March 2007 incident. The applicant stated that the incident has had a significant effect on his mental and physical health and in the intervening four years, he has been occupied with seeking medical treatment, including psychiatric treatment. The applicant also stated that it was only in May of 2011 that he learned that his employer had determined that “no prohibited grounds were violated in the last four years”. There are no allegations of discriminatory actions by the respondent between March 2007 and November 2011.

12The Tribunal has interpreted the phrase “series of incidents” set out in section 34(1)(b) of the Code as requiring that the incidents be connected to each other in terms of their timing and their subject matter. The Tribunal has determined in other cases that a gap in time of more than 12 months will in most cases interrupt the series of incidents. (see Chintamen v. Toronto District School Board, 2009 HRTO 1225).

13In this case, whether or not the incidents are connected in terms of their subject matter the gap between them is in excess of four years. On that basis alone the allegations of discrimination in March 28, 2007 are not part of a series of incidents beginning again in November 2011 and therefore, the allegations of discrimination said to have occurred in March 2007 are out of time.

14Having concluded that the March 28, 2007 incident is not part of a series of incidents beginning again in November 2011, the question becomes whether or not, pursuant to section 34(2) of the Code, the applicant has been able to establish a good faith explanation for the delay in filing the Application. I find that the applicant has not provided a good faith explanation for the delay in this case.

15In his final submissions on this issue, the applicant failed to add anything substantive to what he had said in response to the NOID and which is summarized above. The applicant did file a number of documents to substantiate his attendances with medical professionals over that intervening period between 2007 and November 2011. While the applicant may have been busy with other things in particular dealing with his health, I have no evidence, nor does the applicant assert that he was incapable of filing the Application, during this time period. Although this is not stated explicitly, the applicant seems to suggest that a trigger for the his decision to file the Application was his learning in May of 2011 that the employer considered that there had been no violations of the Code in March 2007. This is not a reasonable explanation for not filing the Application earlier.

16Accordingly, the allegations related to events in March 2007 are removed from the Application. The Tribunal will deal with the allegations beginning with the applicant’s return to work in November 2011. The Tribunal will continue to process the Application as amended by this Interim Decision.

17I am not seized of this case.