Eskaros v. Canada Post, 2012 HRTO 753

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Eskaros

Applicant

-and-

Canada Post and Bee Clean

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: April 16, 2012

Citation: 2012 HRTO 753

Indexed as: Eskaros v. Canada Post

1This is an Application filed on October 12, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of race, place of origin, ethnic origin, sex, disability and reprisal.

2The Application indicates that the latest incident of discrimination occurred on August 6, 2010. The Tribunal issued a Notice of Intention to Dismiss (“NOID”) on March 12, 2011, because the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination and because the respondent, Canada Post, appeared to be a federally-regulated entity. On or about April 4, 2012, the Tribunal received the applicant’s response to the NOID. The Tribunal has not delivered the Application to the respondents or requested submissions from them regarding the NOID.

3Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are 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.

4The Application was filed on October 12, 2011. The applicant stated that the last event on which the Application is based occurred on August 6, 2010, which is more than one year prior to the filing date. I must determine if this delay was incurred in good faith and, if so, whether the respondents would suffer substantial prejudice as a result of the delay.

5The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

6The applicant explained that he first complained to the Canadian Human Rights Commission (the “Commission”) because he believed that Canada Post was the respondent to his claim. By letter dated May 24, 2011, the Commission informed the applicant that his complaint appeared to related to Bee Clean, a provincially-regulated entity, and therefore was not a matter for which the Commission had jurisdiction. Accordingly, the Commission suggested that the applicant bring his concerns to the Tribunal and provided the Tribunal’s telephone number. The applicant stated that the Commission’s response was delayed by the postal strike, but did not indicate when he actually received the Commission’s correspondence. I note, however, that the postal strike did not commence until on or about June 3, 2011, and mail continued to be delivered until Canada Post locked out its employees on or about June 15, 2011. The Federal Government enacted legislation that ended the lock-out on or about June 28, 2011. Accordingly, the applicant most likely received the Commission’s response in June or July 2011, i.e., in time to meet the deadline for filing his Application with the Tribunal on August 6, 2011, assuming he acted with all due diligence. The applicant did not explain why he waited until October 2011 to file with the Tribunal. In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.

7The Application is dismissed.