Bodden v. Wells Fargo Financial Corporation Canada, 2012 HRTO 928

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerry-Ann Bodden

Applicant

-and-

Wells Fargo Financial Corporation Canada, Tracey Huber, Sarah Banki-Anderson, Laura Gibson, Rita Skiriumos, Wes Robinson and Jeff Pilon

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 8, 2012

Citation: 2012 HRTO 928

Indexed as: Bodden v. Wells Fargo Financial Corporation Canada

WRITTEN SUBMISSIONS

Kerry-Ann Bodden, Applicant ) Ken Berger, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on December 1, 2011, alleging discrimination in employment on the basis of race, colour, disability and sex. The applicant indicated in her Application that the last incident of alleged discrimination took place in April 2010.

2A Notice of Intent to Dismiss (“NOID”) was issued on January 17, 2012, indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination.

DELAY

3Section 34 states, in part:

(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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

5Counsel for the applicant filed submissions, which include an affidavit from the applicant. In this affidavit, the applicant states that she had a high-risk pregnancy, which involved her going on bed rest. The attached note from her doctor stated that her due date was August 15, 2010. The applicant did not specify when she actually gave birth, but said that she was unable to pursue enforcing her rights under the Code following the birth because she was looking after a newborn baby and two other children whose ages are not specified.

6The applicant states that once she was “physically” in a position to file an Application more than a year had elapsed. She does not specify when this was, but it is clear from her affidavit it was sometime before December 1, 2011 (the date she did file) because she states, “I met with my lawyer and we spent some time trying in good faith to resolve the issue without having to bring a claim and he advised me to try to mitigate my damages.” The applicant does not specify when she sought the advice of a lawyer, or whether he failed to advise her of the one-year time limitation under the Code.

7In the circumstances, I am not satisfied it is plain and obvious that the delay in filing the Application outside the one year limitation period was not incurred in good faith. Accordingly, the Tribunal will continue to deal with the Application. The respondents may wish to make further submissions on the issue of delay in their Response(s). This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application.

8I am not seized of this matter.