Human Rights Tribunal of Ontario
Between:
Jamie Denis Applicant
-and-
Henniges Automotive, Stuart Bauer, Phil Lustri, United Steel Workers of America, Local 455, Joe Buote and Darrin Cochrane Respondents
Decision
Adjudicator: Naomi Overend Date: March 29, 2012 Citation: 2012 HRTO 662 Indexed as: Denis v. Henniges Automotive
1The applicant filed an Application on February 3, 2012 alleging discrimination in employment on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application contains allegations relating to his termination from employment with the respondent company on July 14, 2008 and his union's refusal to take his case to arbitration in 2009.
2On February 21, 2012, the Tribunal sent a Notice of Intent to Dismiss for delay. The applicant filed submissions in response to the Notice on March 21, 2012.
3Section 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.
4The applicant takes the position that his Application was timely because the last incident of alleged discrimination took place on February 4, 2011. However, a review of the applicant's narrative shows that the only thing that happened on that day was that the Ontario Labour Relations Board ("OLRB") released its reconsideration decision on his duty of fair representation claim under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1.
5By way of background, the applicant filed a grievance on July 15, 2008, the day after his employment was terminated. He states in his Application that he was advised in "late February 2009" that the union was not proceeding to arbitration on his grievance. He filed a s. 74 claim with the OLRB, which he says was "accepted" on January 13, 2010, but ultimately was not successful. He then apparently filed for reconsideration.
6Given this chronology, what is clear is that the last alleged act of discrimination against the respondent company (and its officials) occurred on July 14, 2008, some 42 months before the applicant filed his Application with the Tribunal; the last alleged act of discrimination against his union (and its officials) occurred in February 2009, almost three years before his Application was filed.
7As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one's Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.
8The applicant states that he was talking to his former union steward at an event on September 23, 2011, who advised him that he and the other union representatives knew that the applicant had been discriminated against, but concealed this knowledge from the applicant for what appear to be political reasons. In his submissions, the applicant states that this is when the discrimination "crystalized" for him.
9However, the applicant also states in his submissions that he believed the OLRB would address his human rights complaint against his union and employer and it was not until he received the reconsideration decision that he understood that the OLRB would not "entertain" these complaints. That is, the applicant was aware that he had a human rights complaint, but chose to pursue it via another route.
10The fact that he may have felt as though he had a better case following the discussion with his former union steward is not, in itself, a sufficient basis for waiting. As noted by the Tribunal in Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23:
The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.
11This Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There was nothing to prevent the applicant