HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barry Bezaire

Applicant

-and-

Prestressed Systems Inc.

Respondent

DECISION

Adjudicator: Alison Renton

Date: April 17, 2012

Citation: 2012 HRTO 774

Indexed as: Bezaire v. Prestressed Systems

WRITTEN SUBMISSIONS

Barry Bezaire, Applicant ) Self-represented )

Prestressed Systems Inc, Respondent ) Robert W. Auger, Counsel

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on July 15, 2011 in which he alleges discrimination in employment on the ground of disability. The applicant was represented in his employment by the Labourers’ International Union of North America Local 625 (“the union”), whom he named as a respondent as well as his employer, the respondent. The respondent has not yet been required to file a Response.

2It appears from the Application that the applicant alleges that the respondent failed to accommodate his disabilities to the point of undue hardship and was terminated in October 2008. The applicant alleges that since his termination, he has been attempting to receive a severance package from the respondent, without success, initially with the assistance of the union and then with a paralegal (“the representative”). He identifies June 21, 2011 as being the last date upon which the Application is based. It appears that this date is based upon communications between the applicant’s then representative and counsel for the respondent following his termination.

3An Interim Decision dated December 15, 2011 (“the December Interim Decision”) was issued by the Tribunal in which the Tribunal removed the union as a respondent. Further, the Tribunal noted that the essence of the Application is the applicant’s termination and events leading up to his termination, which occurred in October 2008 and before, and that the Application may be untimely. The Tribunal directed the applicant to file submissions addressing how his allegations against the respondent were timely and what, if any, good faith reason he had for any delay in filing his Application. The respondent was provided an opportunity to file any response submissions.

4Subsequent to the December Interim Decision, the applicant’s representative communicated with the Tribunal to advise that she was no longer representing the applicant. The applicant contacted the Tribunal to request a copy of the December Interim Decision. On February 7, 2012, and after receiving an extension from the Tribunal to file his submissions in a Case Assessment Direction dated January 24, 2012, the applicant filed submissions further to the December Interim Decision. The respondent filed submissions dated March 28, 2012.

The Applicant’s Submissions

5In his February 2012 submissions, the applicant provides a number of details about his working conditions prior to his termination and comments that he received from his supervisors about his disability. He asserts that he attempted to receive his severance pay initially through his union which told him that the respondent views him as being an inactive employee, which, in their view, does not entitle him to any severance package. When the union failed to get him a severance package, he obtained legal representation to negotiate his severance pay. Utilizing the assistance of the union and the representative is why his Application is late.

6The applicant attached to his submissions various communications that he and his representative have had with the respondent including documentation from June 2011 in which the respondent apparently takes the position that the applicant has not been terminated but instead is an inactive employee.

The Respondent’s Submissions

7The respondent notes that the June 21, 2011 date is when the applicant’s representative communicated with its counsel. The respondent submits that the incidents giving rise to the Application were from October 2008 and before and that the June 21, 2011 date does not form part of a “series of incidents” within the meaning of the Code.

Analysis

8Section 34 of the Code requires that an Application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(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.

9In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

10In this case, the alleged discrimination occurred, at the latest, in October 2008 when the applicant was allegedly terminated. The applicant had one year following October 2008 to file his Application. I note that the documents submitted by the applicant appear to suggest that in October 2008 the applicant became an inactive employee. In my determination, it does not matter whether the applicant was terminated or became an inactive employee in October 2008 as I find that October 2008 is the last date upon which the alleged discrimination took place. Any subsequent settlement discussions are events that flow from the alleged date 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.

11The allegations that post-date October 2008 are not new allegations of discrimination or harassment. In my view, they are attempts made by the applicant through either the union or his representative to negotiate a termination and/or severance package with the respondent.

12The Tribunal has stated in a number of cases that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will not generally constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. Similarly, discussions between parties and their representatives to settle employment issues do not constitute a valid explanation for delay in filing an Application.

13Accordingly, the applicant has not been able to provide a reasonable explanation for the delay and the Application is dismissed.