Stephen Michael Young-Chin v. P. J. O’Brien Irish Pub and Restaurant, 2013 HRTO 1421

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Michael Young-Chin

Applicant

-and-

P. J. O’Brien Irish Pub and Restaurant

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: August 19, 2013

Citation: 2013 HRTO 1421

Indexed as: Young-Chin v. P.J. O’Brien Irish Pub and Restaurant

WRITTEN SUBMISSIONS

Stephen Michael Young-Chin, Applicant

Self-represented

P.J. O’Brien Irish Pub and Restaurant, Respondent

David Lamph, Representative

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent contravened the settlement reached in this matter.

2The Tribunal issued a Case Assessment Direction, dated June 17, 2013, requesting the parties’ written submissions with respect to the issue of delay, good faith and prejudice because it appeared to the Tribunal that there was a jurisdictional issue because the Application may have been filed more than six months after the date of the alleged contraventions. An Application to the Tribunal with respect to a contravention of settlement must be made “within 6 months after the contravention to which the application relates”, pursuant to subsection 45.9(3) of the Code. Both parties filed written submissions.

Analysis and Decision

3Section 45.9(3) and (4) of the Code state:

(3) 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 (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.

4The Minutes of Settlement were signed by the parties on August 4, 2011, which stated that the respondent would provide Human Rights training to its employees within four months, and post Human Rights cards in its establishment within one month, of the signing of the Minutes of Settlement.

5The applicant alleges that the last contravention occurred on December 4, 2011. He commenced this Application on February 6, 2013.

6The applicant did not file his Application within the six months required pursuant to subsection 45.9(3) of the Code. Therefore, the Tribunal has no jurisdiction to hear this Application unless, pursuant to subsection 45.9(4) of the Code, 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”.

7In Freitag v. Penetanguishene (Town), 2012 HRTO 1644, the Tribunal stated that the language in subsection 45.9(4) “essentially mirrors the language concerning the timelines of filing applications pursuant to s. 34 of the Code”, and applied Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), in which the Tribunal stated at paragraph 24:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period…

8The Tribunal further stated at paragraph 25 of Miller:

In dealing with requests that applications be considered outside the one-year limitation period, 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, often related to the human rights claim itself, that justifies exercising the discretion.

9In this case the applicant provided no reasons for his delay in bringing this Application. He did not allege any human rights claim-related reasons for the delay, and alleged only that he was not motivated by bad faith. According to Miller, the simple absence of bad faith is not sufficient to establish good faith.

10I find that the applicant has not demonstrated why he did not meet the six month limitation period, and I am not satisfied that the delay was incurred in good faith. It is therefore not necessary for me to consider the issue of prejudice to the respondent.

11The Application is dismissed.