Nicholas v. Web Offset Publications Limited, 2013 HRTO 1507

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenn Nicholas

Applicant

-and-

Web Offset Publications Limited

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 6, 2013

Citation: 2013 HRTO 1507

Indexed as: Nicholas v. Web Offset Publications Limited

WRITTEN SUBMISSIONS

Glenn Nicholas, Applicant

Self-represented

1This is an Application filed on July 12, 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. The applicant alleges that the respondent terminated his employment because of his disability on May 28, 2012.

2Section 34 of the Code provides as follows:

34. (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.

3The Application indicates that the respondent terminated the applicant’s employment on May 28, 2012 after he was unable to return to work following a workplace accident. The applicant states that he filed a grievance with his union on June 20, 2012 contesting his dismissal. On March 5, 2013, however, his union advised him that they could not assist him, which the applicant identified as the last incident of discrimination.

4By letter dated July 19, 2013, the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because it appeared that the Application was filed more than one year after the last alleged incident of discrimination. The Notice indicated that it was not clear that the last incident identified amounted to an “incident of discrimination” for the purposes of section 34(1) of the Code. The Notice also advised that the applicant did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues.

5The applicant filed written submissions on August 19, 2013. The applicant explained that he contacted a lawyer regarding his situation who advised him that he should wait for his union to resolve his grievances before taking any other action against the respondent.

6At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. In my view, it is not plain and obvious that the Application should be dismissed at this time because it is not plain and obvious that there is not a good faith explanation for the delay in filing the Application.

7I note, however, the letter informing him of his dismissal, which the applicant filed with the Application, also advised him that the respondent filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”). The applicant filed a Proof of Claim under the BIA for notice and severance pay. The BIA provides, in part:

69 (1) Subject to subsections (2) and (3) and sections 69.4 and 69.5 on the filing of a notice of intention under section 50.4 by an insolvent person,

(a) No creditor has any remedy against the insolvent person or the insolvent person’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy,

69.3 (1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.

8The Tribunal has found that an application seeking monetary compensation for a violation of Code rights is a “claim provable in bankruptcy” which is stayed by operation of section 69(1) of the BIA. See Rijal v. Distinctive Designs Furniture, 2009 HRTO 297, and also Mead v. Loop Enterprise, 2010 HRTO 1461. It therefore appears that this Application cannot proceed against the respondent.

9The applicant may file written submissions within 14 days of the date of this Interim Decision to provide any information that would indicate that a stay under section 69(1) of the BIA is not, or is no longer, in place, failing which the Tribunal shall dismiss the Application.