Schaffer v. Conquest Vehicles Inc., 2013 HRTO 2000

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Schaffer

Applicant

-and-

Conquest Vehicles Inc., Jeff Compton, Jason Willis, Andrew Turner, and

Tim Chapman

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: December 3, 2013

Citation: 2013 HRTO 2000

Indexed as: Schaffer v. Conquest Vehicles Inc.

WRITTEN SUBMISSIONS

Stephen Schaffer, Applicant ) Self-represented

Conquest Vehicles Inc., Jeff Compton, )

Jason Willis, Andrew Turner, and ) Jane Sirdevan, Counsel

Tim Chapman, Respondents )

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis of jurisdiction because it was filed outside the one-year statutory time limit set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The statutory time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

BACKGROUND

3On March 14, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Code, which acknowledged that the Application was filed outside the one-year statutory time limit, and provided submissions arguing that his delay in filing his Application was incurred in good faith.

4On April 2, 2013, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination, and he did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law.

5On May 27, 2013, the applicant filed written submissions in response to the NOID, which did not squarely address the timeliness issue.

6On July 4, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1173, which decided to continue to process the Application because it was not plain and obvious that it was outside the Tribunal’s jurisdiction. The Tribunal also stated that this was not a final decision regarding the Tribunal’s jurisdiction with respect to the issue of delay or any other jurisdictional matter.

7On August 8, 2013, the respondents filed a Response to the Application, which requested that the Tribunal dismiss the Application because it was filed more than one year after the last alleged incident of discrimination, and was therefore not properly within the jurisdiction of the Tribunal. The respondents argued that the applicant’s delay in filing his Application was not incurred in good faith.

8On August 21, 2013, the Tribunal delivered the Response to the applicant with the following direction:

Rule 9.1 of the Human Rights Tribunal of Ontario’s (HRTO) Rules of Procedure requires an applicant who intends to prove a version of the facts different from those set out in a Response to include those facts in the Reply, unless that version of facts is already set out in the Application. An applicant may also file a Reply to respond to new matters raised in the Response.

The Reply (Form 3) must be delivered to the other parties and any organization or other person identified as an affected person in the Application or Response, and filed with the HRTO, along with a completed Statement of Delivery (Form 23), not later than September 4, 2013.

9The applicant did not file a Reply to the Response by September 4, 2013.

10On September 23, 2013, the Tribunal issued a Case Assessment Direction (“CAD”), which directed the applicant to deliver to the respondents and file with the Tribunal written submissions in response to the respondents’ request to dismiss his Application because it was filed more than one year after the last alleged incident of discrimination, and the respondents’ argument that his delay in filing his Application was not incurred in good faith. The CAD also directed the respondents to deliver to the applicant and file with the Tribunal written submissions in response to the applicant’s submissions.

11On September 30, 2013, the applicant filed a Reply to the Response, which, again, did not squarely address the timeliness issue.

12On October 16, 2013, the respondents filed written submissions, which noted that the applicant’s Reply did not appear to address the timeliness issue, and reiterated their request that the Tribunal dismiss the Application on the basis of jurisdiction because it was filed outside the one-year statutory time limit, and the applicant’s delay in filing his Application was not incurred in good faith.

ANALYSIS

13There is no dispute between the parties that the applicant filed his Application with the Tribunal outside the one-year time limit in s. 34(1) of the Code. The last alleged incident of discrimination occurred sometime in December 2011, but the Application was not filed until March 14, 2013, which means that it was filed at least 2 ½ months outside the one-year statutory time limit.

14In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

15In his Application, written submissions in response to the NOID, and Reply, the applicant did not squarely address why he filed his Application at least 2 ½ months outside the one-year statutory time limit, or clearly explain how his delay in filing his Application was incurred in good faith. He stated that he became depressed and received counselling and medication as a result of the discrimination, but did not attribute his delay in filing his Application to his depression, or present any medical evidence that he had a disability that was so debilitating that it prevented him from pursuing his legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317 at para. 9.

16Accordingly, I find that the applicant has not established that his delay in filing his Application was incurred in good faith. In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

17The Application is dismissed.