Eskaros v. Bee-Clean Building Maintenance, 2013 HRTO 1774

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Eskaros

Applicant

-and-

Bee-Clean Building Maintenance

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha
Date: October 22, 2013
Citation: 2013 HRTO 1774
Indexed as: Eskaros v. Bee-Clean Building Maintenance

WRITTEN SUBMISSIONS

George Eskaros, Applicant

Self-represented

1The applicant filed this Application on June 14, 2013 under section 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 race, place of origin, ethnic origin, sex, sexual solicitation or advances and gender identity.

2The applicant indicates that the last incident of discrimination occurred on August 6, 2010. The applicant explained the delay in filing this Application was due to the fact that, until recently, he was “not aware” that he “could approach the HRTO regarding this case”.

3By way of Case Assessment Directions (“CAD”) dated July 22, 2013 and August 29, 2013, the Tribunal noted that the Tribunal may not have jurisdiction over this Application because it appears that the applicant filed with the Tribunal a virtually identical application in October 2011, which was dismissed for delay: see Eskaros v. Canada Post, 2012 HRTO 753. The respondent in this case was also named as a respondent party in the previous application. The CADs directed the applicant to file submissions regarding the following preliminary issues:

1.) Should this Application be dismissed because of untimeliness?

2.) Should this Application be dismissed pursuant to section 45.1 of the Code and/or based on the doctrine of abuse of process because the Application appears duplicative of the previous application?

4The applicant filed written submissions confirming that the last incident occurred in the summer of 2010. The applicant explained that he did not know that human rights applied to his concerns because he believed the issues were workplaces safety matters only. The applicant also indicates that he only recently learned from the Canadian Human Rights Commission that it did not have jurisdiction over his complaint. Lastly, the applicant submits that took time for him to obtain assistance to fill out the forms.

DECISION

5The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay in bringing their human rights matters forward: see Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with justly and expeditiously. Thus, the Code requires an applicant to act with all due diligence and file an application within one year of the alleged discrimination when seeking to pursue a human rights claim.

6In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident, or the last incident in a series of incidents, of alleged discrimination. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.

7The applicant implies that the delay in filing the Application was because he was unaware of his right to file a complaint. The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

8I do not accept the applicant’s submissions that he was unaware of that his concerns involved human rights and that the delay is the fault of the Canadian Human Rights Commission.

9Vice-chair Sanderson in Eskaros v. Canada Post, namely the Decision regarding the applicant’s previous Application, held that the applicant has been aware of the human rights issues and in contact with the Canadian Human Rights Commission since the summer of 2011. As was found by Vice-chair Sanderson, I similarly conclude that the applicant has not provided a reasonable explanation for the delay and, therefore, has not established that the delay was incurred in good faith.

10Having found the delay was not incurred in good faith, I need not address the issue of prejudice.

11Accordingly, the Application is dismissed.