HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sukhwinder Nagra
Applicant
-and-
Sheraton Gateway Hotel, Ramzy Eid, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9466, and Sean Logan
Respondents
DECISION
Adjudicator: Alan G. Smith
Indexed as: Nagra v. Sheraton Gateway Hotel
APPEARANCES/WRITTEN SUBMISSIONS
Sukhwinder Nagra, Applicant ) J. Wayne Pitterson,
) Representative
Sheraton Gateway Hotel and Ramzy Eid, ) Donna D’Andrea, Counsel
Respondents )
United Steel, Paper and Forestry, Rubber, ) Robert Champagne, Counsel
Manufacturing, Energy, Allied Industrial )
and Service Workers International Union )
Local 9466, and Sean Logan, )
Respondents )
BACKGROUND
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 July 8, 2011, which alleges discrimination in employment because of race, colour, place of origin, ethnic origin and disability.
2Pursuant to s. 43(2) of the Code and Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing by teleconference was held before me on January 31, 2012. The purpose of the summary hearing was to determine whether the Application should be dismissed, in whole or in part, for the following reasons:
as against her employer the Sheraton Gateway Hotel and Ramzy Eid, (“the employer respondents”) on the basis that the Application is outside the Tribunal’s jurisdiction because it appears to have been filed more than one year after the date of last incident of discrimination;
as against the her union United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9466, and Sean Logan (the “union respondents”), on the basis there is no reasonable prospect that the allegation that the union encouraged her to settle her grievance and that such encouragement, if it occurred, constitutes Code related discrimination would be proven at a hearing on the merits;
as against all respondents, on the basis that the Application should be dismissed as an abuse of process and/or pursuant to s. 45.1 of the Code having regard to the fact a full and final release was executed by all the parties;
as against all respondents, that there was no reasonable prospect that the Application would succeed at a hearing on its merits.
3The Application was served on the respondents at the same time as the Case Assessment Direction notifying the parties of the summary hearing. The respondents were advised that it was not necessary to file Responses at that time.
4The applicant participated in the summary hearing through his representative. All responding parties also participated and made oral submissions. The Application and the respondents’ written submissions were also considered by me.
FACTS
5The applicant self-identifies as a person of East Indian origin. She began her employment with the employer respondent in May of 1992. The union was her bargaining agent in the workplace.
6The applicant suffered a workplace related injury in August of 2004 and in January 2005 sustained further injury. She alleges, in essence, that her employer failed to accommodate her disability during the subsequent period.
7On April 27, 2007 her employment was terminated.
8The union grieved the applicant’s termination and entered into settlement discussions with the employer.
9On April 26, 2010, a settlement was reached between the applicant, union and employer. The Application alleges that the union encouraged her to agree to the settlement and therefore was aiding and abetting the employer in discriminating against her.
ANALYSIS
Allegations against the Union Respondents
10During the hearing I asked the applicant to clarify whether her argument that the union violated the Code was based solely on the allegation that the union encouraged her to settle the grievance in April 2010. In response the applicant conceded that the union respondents did not encourage settlement of the grievance in April of 2010.
11I therefore find that the allegations of discrimination by the union respondents should be dismissed.
Allegations against the Employer Respondents – The Timeliness Issue
12Section 34 of the Code provides:
(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.
13The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The one-year period to file an Application is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously.
14In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Good faith is more than just the absence of bad faith. To succeed under s. 34(2) the applicant has to show she acted with all due diligence to pursue her claim. See Reid v. Ontario March of Dimes, 2009 HRTO 2207, and McGhie v. Bell Canada, 2011 HRTO 1197.
15The applicant appears to argue that the time limit should run, not from the date of the termination of her employment in 2007, but from the date the settlement was entered into in April 2010. I cannot accept this argument. At best, the date of the settlement could be characterized as an event that flowed from the alleged Code breaches. The fact of the settlement of the grievance might be a result of alleged discriminatory actions, but it is not a further incident of discrimination. The continued effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents. See, Mafinezam v. University of Toronto, 2010 HRTO 1495, and Lechet v. Casey House, 2011 HRTO 620.
16In the course of the hearing the applicant suggested that the reason for the delay in filing the Application could be legitimized as due to her waiting for the conclusion of the grievance arbitration process. This argument also cannot succeed. The Tribunal has found in the past that it is not reasonable for an applicant to delay filing an application with the Tribunal while awaiting the outcome of other processes. See Hall v. Royal Victoria Hospital, 2010 HRTO 1165, and Sgro v. Spar Marathon and Roof Supplies, 2011 HRTO 688.
17Given the absence of evidence that the delay was incurred in good faith, I find that the Application does not satisfy the requirements of section 34 of the Code. Therefore the Tribunal is without jurisdiction to proceed with the balance of the Application against the employer respondents.
18The Tribunal has held that, if it has not been shown that the delay was incurred in good faith, it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579, and McGhie, above.
19Given my above findings, it is also not necessary to deal with the issues as to whether the continuation of the Application would be an abuse of process and/or that the Application should be dismissed under s. 45.1 of the Code. Nor do I find it necessary to decide whether the Application had a reasonable prospect of success at a hearing on its merits.
ORDER
20The Application is dismissed.
Dated at Toronto this 17th day of February
”signed by”____________
Alan G. Smith
Member