HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ramon Suarez Cadena

Applicant

-and-

eHealth Ontario

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: March 8, 2012

Citation: 2012 HRTO 494

Indexed as: Cadena v. eHealth Ontario

INTRODUCTION

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 19, 2011, alleging that the respondent discriminated against him with respect to employment on the basis of place of origin, citizenship, ethnic origin, sexual orientation, marital status and engaged in reprisals contrary to the Code. The respondent has not yet been required by the Tribunal to file a Response to the Application.

2This Decision addresses whether the applicant is prevented from pursuing his Application on the basis of delay.

3Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the 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 if the Application were to proceed:

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.

BACKGROUND

4In his August 19, 2011 Application to the Tribunal, the applicant expressly identified the “date of the last event” to which his Application relates as August 19, 2010. However, in describing “each event [he] believe[d] was discriminatory” in the narrative that accompanied the Application, the applicant did not describe any events after November 2009, at which point the applicant allegedly went off work on disability leave due to stress.

5Accordingly, on August 30, 2011, 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 explained how the delay was incurred in good faith and why no substantial prejudice would result to any person affected by the delay. The Tribunal directed the applicant to make submissions in response to the Notice of Intent to Dismiss addressing the issues identified therein.

6In response, on October 16, 2011, the applicant filed written submissions in which he asserted, among other things, that his “last event happened August 19, 2010” and that his August 19, 2011 Application was therefore timely. Again, however, the applicant did not describe what allegedly happened on August 19, 2010, such that it ought to be regarded as the date of the last incident to which the Application relates.

7Pursuant to Case Assessment Directions dated October 26, 2011 and December 23, 2011, the applicant was given two further opportunities to explain what allegedly happened on August 19, 2010, such that it ought to be regarded as the date of the last event upon which his Application is based, and to provide any further submissions he wished to make with respect to whether any delay in filing the Application was incurred in good faith and whether substantial prejudice would result to any person affected by the delay if the Application were to proceed.

8In his most recent December 30, 2011 submissions, the applicant states that he previously indicated that August 19, 2010 was the date of the last event upon which his Application was based because he did not understand the Tribunal’s question and also because he “did not recall the very last event”.

9The applicant now indicates that the last event upon which his Application is based actually occurred on July 29, 2010. On that date, not long after the applicant returned to work from short term disability leave, the applicant allegedly had a meeting with his manager and a member of the respondent’s Human Resources department to address the applicant’s concerns that his manager was mistreating him. The applicant subsequently went off on long disability leave on August 23, 2010.

ANALYSIS AND DECISION

10Assuming, without finding, that July 29, 2010 is, as the applicant submits, the date of the last allegedly discriminatory incident to which the Application relates, the August 19, 2011 Application is clearly untimely within the meaning of s.34(1) of the Code. The Application may therefore not proceed unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay: s.34(2).

11In order to satisfy the Tribunal that the delay in filing his Application was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner. In Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart, (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3d) 419 (Ont. U.F.C.), cited in Scherer v. Scherer, 2002 CanLII 44920 (ON CA), (2002) 59 O.R. (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).

12In his December 30, 2011 submissions, the applicant provides three reasons for the delay in filing his Application. He submits (1) that he was was trying to fix his problems with the respondent employer the whole time; (2) that he was unaware of the one-year time limit for filing an Application under the Code; and (3) that he was off work on Long Term Disability leave and did not have the emotional strength to deal with this problem in a timely way. Along the same lines, in his October 16, 2011 submissions, the applicant submitted that he did not file the Application earlier than he did because he “did not want to or have to remember all these issues from work”, issues that he submits caused his depression and mental illness.

13Based on the information before me, I am not satisifed that the delay in filing the Application was incurred in good faith.

14The fact that the applicant was attempting to resolve his human rights complaint(s) directly with the respondent employer is laudable. However, it is not a reasonable explanation for the applicant’s failure to comply with the statutory time limit for enforcing his rights under the Code. The applicant could have filed a timely Application under the Code while he continued to pursue his attempts to resolve the matter directly with the respondent. Waiting to see whether human rights complaints can be resolved internally 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.

15As for the applicant’s submission that he was unaware of the one-year time limit for filing an Application under the Code, this is clearly not a good faith reason for the delay in filing the Application. As stated in Lutz, supra, ignorance of one’s rights will not be sufficient to establish that delay in filing an Application was incurred in good faith unless the applicant can also establish that he had no reason to make timely enquiries about his rights. The applicant does not assert, and there is nothing in the materials before me, that would allow me to conclude that the delay in this case was incurred in whole or in part because the applicant had no reason to make timely enquiries about his rights under the Code, including his right to file an Application with the Tribunal within the statutory time limit.

16Finally, the applicant submits that he was unable to file a timely Application under the Code because he was off on long term disability leave and he did not have the emotional strength to file the Application before he did. This is the sort of explanation that, if substantiated, might lead the Tribunal to conclude that the delay in filing the Application had been incurred in good faith: Lutz v. Toronto (City), 2010 HRTO 769. In this case, however, despite having had numerous opportunities to do so, the applicant has failed to provide the Tribunal with a sufficient basis upon which it might conclude that mental disability prevented the applicant from filing a timely Application under the Code.

17First, I note that the applicant’s submission that he could not file a timely Application for emotional reasons is at odds with his submission that he was able to try to resolve the matter directly with the respondent “the whole time”.

18In addition, although the applicant makes the bald assertion that he did not have the emotional strength to file his Application in a timely way, there is no cogent explanation as to why the applicant lacked the emotional strength to file the Application on or before July 29, 2011 (i.e. within the one-year time limit), but was able to do so three weeks later, on August 19, 2011. Moreover, the applicant has failed to provide any medical documentation to back up the claim that he was medically and/or emotionally unable to file his Application within the one-year time limit, despite having been specifically advised by the Tribunal that the onus was on him to provide any evidence that he wished the Tribunal to consider in determining whether it was satisfied that any delay in filing the Application had been incurred in good faith. Specifically, in its October 26, 2011 Case Assessment Direction in this matter, the Tribunal stated:

At this time, the Tribunal also wishes to address the applicant’s statement in his October 16, 2011 email that additional medical information in support of his position on the delay issue may be available, and his request that the Tribunal “let him know” if such information is required.

The Tribunal is a neutral adjudicative body whose role is to determine applications under the Code based on the evidence presented by the parties. It is for the applicant to decide what evidence he wishes to put before the Tribunal on the issues raised by the Application, including the delay issue. The Tribunal will determine the issue based on the evidence presented. If the applicant does not present evidence sufficient to satisfy the Tribunal that the delay in filing his Application, if any, was incurred in “good faith”, the Application must be dismissed in accordance with section 34(2) of the Code.

19In the circumstances of this case, the applicant’s mere assertion that he was medically or emotionally unable to file his Application in a timely manner, in the absence of any cogent explanation and/or medical documentation to support that claim, is insufficient to satisfy the Tribunal that the delay in filing the Application was incurred in good faith. Since the Tribunal is not satisifed that the delay in filing the Application has been incurred in good faith, it follows that the Application must be dismissed. It is not necessary for the Tribunal to make the further determination as to whether any substantial prejudice would result to anyone affected by the delay if the Application were to proceed: Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

ORDER

20The Application is dismissed.