Gerald Kennedy v. Moore Packaging Corporation, 2013 HRTO 1942

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerald Kennedy

Applicant

-and-

Moore Packaging Corporation

Respondent

DECISION

Adjudicator: Brian Cook

Date: November 22, 2013

Citation: 2013 HRTO 1942

Indexed as: Kennedy v. Moore Packaging Corporation

WRITTEN SUBMISSIONS

Gerald Kennedy, Applicant

Andrew Kerr, Counsel

Moore Packaging Corporation, Respondent

Doug MacLeod, Counsel

Introduction

1This Decision considers whether the Application should be dismissed because the Tribunal does not have jurisdiction to deal with it because it was not filed in time.

2The applicant's employment with the respondent was terminated on December 21, 2007. The applicant was 71 years of age at the time and he alleges that his age was a factor in the termination of his employment. The respondent denies that the applicant's age was a factor and asserts that the termination of employment was due solely to economic factors and lack of work.

3The Application was filed on July 4, 2013, more than five years after the events giving rise to the Application.

4Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (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.

5The Application was not filed within one year as required by section 34(1). The applicant argues that there is a good faith explanation for the delay and no substantial prejudice would result to the respondent and that the Application should therefore be allowed to proceed under section 34(2).

The explanation for the delay

6The applicant's counsel explains that at the time the applicant's employment was terminated in December 2007, he was aware that amendments to the Code were coming into force on June 30, 2008. The amendments included section 46.1 of the current Code which allows a party to a civil proceeding to seek damages under the Code in certain circumstances:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

7The applicant filed a civil action for wrongful dismissal and added a claim for damages under the Code pursuant to section 46.1. The Statement of Claim was filed in December 2009 within the two-year limitation period following the December 2007 termination. Counsel states that the respondent's counsel informed him at the time that since the behavior complained of took place before section 46.1 came into effect, the right to claim damages under section 46.1 did not exist when the dismissal took place. Following attempts to negotiate a settlement in 2011, counsel discovered that the respondent’s counsel was correct. He indicates that he was relying on the respondent's counsel to bring a motion in court to have the section 46.1 claim struck but that the motion was not heard until July 11, 2012. At that time Madam Justice Healey struck parts of the claim dealing with the Code-related parts of the claim. It is not clear what became of the parts of the claim that were not struck.

8The Application was filed on July 4, 2013, approximately 51 weeks after Justice Healey’s decision of July 11, 2012.

Analysis and Conclusions

9The applicant's theory of this case seems to be that he only knew for certain that he was unable to bring his Code-related claim for damages as part of a civil action when Justice Healey issued her decision and that he had up to one year after that to bring the Application and that he met that time limit.

10I note that up to the time Justice Healey dismissed the parts of the Statement of Claim concerning the claim for damages under the Code, the Tribunal would not have had jurisdiction to deal with an Application because of section 34(11) of the Code:

34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

11Until Justice Healey’s decision, the applicant had commenced a civil proceeding in court in which he was seeking an order under section 46.1 of the Code and the civil proceeding had not been finally determined or withdrawn. After Justice Healey’s decision, there was no longer a civil action in which the applicant was seeking an order under section 46.1 of the Code, and no determination by the court of whether the applicant's Code-protected rights had been infringed.

12The applicant’s counsel appears to suggest that the applicant then had one year to file the Application and notes that he did file the Application in that time. However, it is not true that the applicant had one year after Justice Healey’s decision in which to file the Application. Under section 34(1) an Application must be filed within one year of the last incident of alleged discrimination. In this case, that was in 2007. Under section 34(2), an Application that is not filed within one year may still be brought if there is a good faith explanation for the delay.

13I note that according to counsel's own account, he realized by 2011 that the claim for damages under section 46.1 of the Code could not succeed. Had the Statement of Claim been amended and an Application brought to this Tribunal at that time, the Application would still not have been filed in accordance with section 34.1 of the Code, but it would have less out of time than was the case by July 2013 when it was filed. It appears that Justice Healey’s decision only confirmed what the applicant's counsel already knew.

14Despite this, the fact that the Application was barred by section 34(11) until Justice Healey’s decision might still provide a good faith explanation for the delay in filing the Application prior to July 11, 2012, when the decision was issued.

15However, after that, the Application was not filed for a further 51 weeks. No explanation for that delay has been provided. The applicant's counsel only asserts that one year is a reasonable period in which to file an Application.

16The Application was essentially identical to the claim for damages under section 46.1 that was part of the civil action. In these circumstances, it does not appear to me that the fact that counsel took almost a full year to file the Application is a good faith explanation for the delay in filing the Application for the period subsequent to the order of the court in July 2012.

Decision

17The Application was not filed within one year of the alleged discrimination. As a result, it was not filed in accordance with section 34(1) of the Code.

18While there may be a good faith explanation for the delay in filing the Application up until July 2012, when the court struck the applicant's claim for damages under section 46.1 of the Code, there is no explanation for the further delay of almost one year before the Application was actually filed. These circumstances mean that the applicant has not established a good faith explanation for the delay in filing the Application within the meaning of section 34(2) of the Code and the Application is dismissed on that basis.