HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ian Ludbrook
Applicant
-and-
Toronto Transit Commission
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Ludbrook v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Ian Ludbrook, Applicant
Robert J. Charko, Counsel
1This is an Application filed on May 29, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.
2On June 11, 2013, the Tribunal issued a Notice of Intent to Dismiss the Application on the basis of delay (“NOID”).
3On July 2, 2013, the applicant filed submissions with respect to the NOID and also sought an extension of time to file further materials. On July 16, 2013, the applicant advised that he was no longer seeking an extension and would not file any further materials with respect to the issue of delay.
4Since the Application has not yet been delivered to the respondents, this Decision only refers to the applicant’s allegations and version of events.
Decision
5Section 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.
6The applicant was employed with the respondent from 1996 until his dismissal on December 14, 2004, which he indicates on his Application is the date of the last incident of discrimination. There is no dispute that the Application was filed almost 7.5 years beyond the prescribed time limit. This is an extreme delay.
7Therefore, the Tribunal must consider whether the delay was incurred in good faith. As 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.” 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.
8The applicant alleges that he is applying late because he was incapacitated because of his drug addiction. In his additional submissions filed on July 2, 2013, the applicant asserts that he completed a rehabilitation program from February to March 2009. During his 18th day of treatment he contacted his Union to file a grievance with respect to his dismissal. The Union advised him that it was too late to file a grievance. The applicant then goes on to state that he was not aware of the Tribunal’s existence and needed time to gather legal funds.
9The submissions provided by the applicant do not support that he was incapable of filing the Application because of his disability. Based on the applicant’s own submissions, the applicant has not had a reoccurrence of his disability since March 2009, more than four years ago. The applicant has not established that he suffered from a debilitating condition which prevented the applicant from pursuing his legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317; 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.
10I do not accept the other reasons provided by the applicant to be reasonable. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:
Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.”
11In this case, the applicant has not shown that he had no reason to make enquiries about his rights, since in fact he did make those enquiries to his Union. In these circumstances, the fact that he may not have been aware of the time limit under the Code or the existence of the Tribunal is not a reasonable explanation and does not demonstrate that the delay was incurred in good faith. The applicant simply has not demonstrated that he exercised any diligence in the pursuit of his human rights.
12The applicant’s submissions as a whole do not support his position that the delay was incurred in good faith. It is not necessary, therefore, to address the issue of prejudice. The Tribunal does not have jurisdiction over the subject-matter of the Application.
Order
13Accordingly, the Application is dismissed.
Dated at Toronto, this 29th day of July, 2013.
“Signed by”
Geneviève Debané
Vice-chair