Kevin Cavanagh v. Scott Builders/Graham Construction and Robert Lovelace, 2012 HRTO 770

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Cavanagh Applicant

-and-

Scott Builders/Graham Construction and Robert Lovelace Respondents

DECISION

Adjudicator: Brian Cook Date: April 17, 2012 Citation: 2012 HRTO 770 Indexed as: Cavanagh v. Scott Builders

WRITTEN SUBMISSIONS

Kevin Cavanagh, Applicant ) Self-represented

Scott Builders/Graham Construction and Robert Lovelace, Respondents ) Mathew Mihailovich, Counsel

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application was filed on August 2, 2011 and alleges discrimination in employment on the grounds of disability and age.

2The Application indicated that the applicant was pursuing related claims at the Ministry of Labour and the Workplace Safety and Insurance Board (WSIB). On November 1, 2011, the Tribunal issued a Notice of Intent to Defer pending the completion of these other proceedings. The Notice was sent to the applicant and the respondents and submissions were invited about whether the Application should be deferred. The respondents were also provided with a copy of the Application.

3The applicant filed a submission indicating that he did not agree that the Application should be deferred. The respondents made submissions in support of deferral. The respondents also submitted that the Tribunal should dismiss the Application because it was not filed within one year of the last alleged incident of discrimination as required under Section 34 of the Code.

4On February 8, 2012, the Tribunal issued a Case Assessment Direction directing the applicant to respond to the respondents' request that the Application be dismissed because it was not filed in time. The applicant filed his submissions on February 9, 2012.

Background

5The corporate respondent is a construction company. The applicant was hired on or about January 5, 2010. After the second day at work, he reported that he was suffering from knee pain and he was sent home to get medical attention.

6A claim was filed with the WSIB and was initially allowed. However, on review, the WSIB determined that the medical diagnosis was not compatible with a traumatic injury and found that the applicant was not entitled to benefits on that basis. With the assistance of the Office of the Worker Advisor, the applicant filed an objection to that decision and the claim came before a WSIB Appeals Resolution Officer in June 2011. The Appeals Resolution Officer issued a decision on July 20, 2011 which confirmed that the applicant was not entitled to benefits under the Workplace Safety and Insurance Act. The applicant filed an appeal of that decision with the Workplace Safety and Insurance Tribunal on August 18, 2011. The status of that appeal is not clear.

7As noted, on August 2, 2011, shortly after receiving the Appeals Resolution Officer's decision and before the appeal was filed with the Workplace Safety and Insurance Tribunal, the applicant filed the Application with this Tribunal.

8After January 7, 2010 when the applicant stopped work, he returned to work for the period of approximately April 5 to April 9, 2010. He was not paid for that work and he filed a complaint about this with the Employment Standards Branch of the Ministry of Labour. The applicant also identified "workplace discrimination" as an issue in the complaint, along with the complaint about unpaid wages.

9The process followed by the Employment Standards Branch is not completely clear from the information provided. The Employment Standards Officer issued an undated decision that indicates that it was determined that the employer owed the applicant $624 in unpaid wages and vacation pay and that the employer had voluntarily agreed to pay this amount. The decision states:

With regard to issues of harassment/discrimination, federal documentation and a Workplace Safety and Insurance Board Claim; they do not fall under the auspices of the Employment Standards Act, 2000.

10As noted, this decision is undated. However, a letter dated May 19, 2011 from the Employment Standards Officer indicates that the decision is enclosed with that letter so it appears that the decision was issued in May 2011.

The respondents' request that the Application be dismissed

11Section 34 of the Code states 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.

12The Application was filed on August 2, 2011. It alleges that the respondents discriminated against the applicant by not offering him continuing employment after April 9, 2010 and this is the date of the last allegedly discriminatory incident. The Application was not filed within one year of the date of the last incident of discrimination as required by section 34.

13However, the Tribunal may permit the applicant to bring the Application if there is a good faith explanation for the delay and if no substantial prejudice will result to any person affected by the delay. In general, as a minimum, the Tribunal requires the applicant to provide a reasonable explanation for why the applicant did not pursue his right under the Code in a timely manner, see Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424

14The applicant submits that there is a good faith explanation for the delay. He states that he brought his allegations about discrimination to the attention of the Ministry of Labour as part of his Employment Standards complaint and he assumed that they would be dealt with. He only found out that this was not the case in May 2011 when he received the decision of the Employment Standards Officer which informed him that allegations of workplace discrimination are not covered by the Employment Standards Act.

15I note that this provides an explanation for why the applicant did not file the Application during the period from April 2010, the date of the last allegedly discriminatory incident, to May 2011, when the applicant received the decision of the Employment Standards Officer. However, it does not explain the delay that occurred after May 2011 until August 2, 2011, when the Application was filed.

16The applicant's submissions do not address this delay. He has forwarded a tape cassette. He indicates that it provides proof of the discrimination that he alleges occurred when the respondents refused to give him work after April 2010. I have listened to the tape. It is hard to make the conversation out but assuming that the applicant is correct that it is a conversation in which he was refused work, it has nothing to do with the issue of the delay in filing the Application.

17Having reviewed all the materials submitted by the applicant, I am unable to find that the applicant has established that the delay in filing the Application was incurred in good faith and the Application is dismissed on that basis.