Oumar Baksh v. Trench Limited, 2012 HRTO 818

Human Rights Tribunal of Ontario

B E T W E E N:

Oumar Baksh

Applicant

-and-

Trench Limited

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: April 23, 2012

Citation: 2012 HRTO 818

Indexed as: Baksh v. Trench Limited

WRITTEN SUBMISSIONS

Trench Limited, Respondent ) Gita Anand, Counsel

1This is an Application for Contravention of Settlement filed on December 6, 2011 under section 45.9(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

BACKGROUND

2The parties executed a memorandum of settlement (the “memorandum”) on July 30, 2008 regarding the applicant’s complaint to the Ontario Human Rights Commission, SBHE-68KMT. The memorandum required the respondent to pay the applicant salary and benefits continuation for 39 weeks, commencing in August 2008.

3The respondent submitted that it complied with the memorandum and paid salary and benefits continuation to the applicant for 39 weeks, i.e., until May 2009. The respondent inadvertently continued benefits for the applicant until May 30, 2011.

4In the Application, the applicant did not identify the term of settlement alleged to be breached or set out facts supporting his claim and states only that “Benefit was stopped after 39 weeks”. The respondent filed a Response where it requested dismissal of the Application because it was filed outside of the statutory time limit established in section 45.9(3)(a) of the Code. By letter dated February 10, 2012, the Tribunal directed the parties to provide further submissions on the issue of delay. The respondent filed additional submissions on March 12, 2012. The applicant did not file any submissions.

DECISION

5Section 45.9(3) and (4) of the Code states as follows:

If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) 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.

6The respondent’s obligation to pay salary and benefits under the memorandum ceased in May 2009. The Application was filed on December 6, 2011, more than six months later (and, in any event, more than six months after benefit continuation ceased). Accordingly, I must determine if this delay was incurred in good faith and, if so, whether the respondent would suffer substantial prejudice as a result of the delay. To establish good faith, the Tribunal requires an applicant to establish a reasonable explanation for the delay. See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241 at paragraphs 24 and 25.

7The applicant provided no explanation for the delay in filing the Application; therefore, there is no basis on which to find the delay was incurred in good faith.

8The Application is dismissed.