Moore v. Penner Building Centre, 2012 HRTO 815

Human Rights Tribunal of Ontario

B E T W E E N:

Alan Moore

Applicant

-and-

Penner Building Centre

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 23, 2012

Citation: 2012 HRTO 815

Indexed as: Moore v. Penner Building Centre

1This is an Application filed on November 1, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges he experienced reprisal in respect of employment. The date of the last incident of discrimination is stated to be June 4, 2010.

2In his Application the applicant acknowledges the delay in filing and explains that he was not functioning at the best of his abilities due to illness and the stress of family illnesses, deaths and financial difficulties.

3A Notice of Intent to Dismiss (“NOID”), dated February 15, 2012, was sent to the Applicant. In the NOID, the applicant was informed that the Tribunal had reviewed his Application and it appeared that the Application was outside the Tribunal’s jurisdiction because it was filed late and he did not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law. The NOID cited two previous decisions of the Tribunal, specifically Thomas v. Toronto Transit Commission, 2009 HRTO 1582, and Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224.

4The NOID went on to state that the applicant was required to provide written submissions on the issue of good faith reasons for the delay in filing on or before March 16, 2012.

5The applicant has not responded to the NOID and the time for doing so has now passed. There is no indication that he did not receive the NOID.

6For the reasons that follow, this Application is dismissed.

7Section 34 of the Code 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

8The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

9The applicant has acknowledged the delay in filing, so I turn to the question of whether the applicant has demonstrated a good faith reason for that delay.

10In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application: see Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.

11As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207, Downer v. Little & Jarrett, 2010 HRTO 992, and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12I find that while the applicant’s illness and other stressful situations may have played a role in causing the delay in filing this Application, the reasons proffered by him do not constitute “good faith” within the meaning of the s.34(2) of the Code. He has not provided medical evidence that his illness rendered him debilitated to the extent that he was unable to pursue his rights under the Code.

13The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

14Consequently, the Application is dismissed.