Ravinder Virdi v. Aero Academy Inc. and Jerry Montour, 2013 HRTO 2037

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ravinder Virdi

Applicant

-and-

Aero Academy Inc. and Jerry Montour

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: December 10, 2013

Citation: 2013 HRTO 2037

Indexed as: Virdi v. Aero Academy Inc.

WRITTEN SUBMISSIONS

Ravinder Virdi, Applicant

Deepinder Loomba, Representative

Introduction

1This is an Application filed 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 place of origin and ethnic origin.

2On October 25, 2013, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) prior to the Application being sent to the respondents, advising that it appeared that the Application was outside the HRTO’s jurisdiction because:

• the Application was filed more than one year after the last incident of discrimination described in your Application, and you have provided a reason for the delay, you do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”. The Application fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.

3The applicant’s employment was terminated on March 15, 2012. He commenced this Application on September 27, 2013, more than one year from the date of termination.

4The applicant’s submissions of November 11, 2013, alleged that the delay was occasioned because the respondents:

a. provided assurances through their lawyer, but with no results;

b. threatened the applicant who had to contact the police;

c. blackmailed the applicant through their lawyer.

5The applicant alleges that he delayed filing his Application because he was afraid for his life.

FACTS AND ANALYSIS

6Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

7In this case, I find that any act of discrimination took place more than one year prior to the Application being filed, and therefore the Application does not meet the requirements of section 34(1).

8I must therefore consider whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice. The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

9The applicant alleges that he was misled by the respondents’ lawyers who provided assurances and who then did nothing to resolve his claims. He attached to his Application a copy of one letter between his representative and the corporate respondent’s lawyers, dated September 23, 2013, which stated it was a response to his letter of June 13, 2013, and specifies that they are not retained by the individual respondent. The corporate respondent’s lawyer’s letter simply states that they do not feel they owe the applicant any money, and that if the applicant pursues any legal proceedings for same, they reserve the right to claim misappropriation of funds, acting in bad faith and breach of fiduciary duty.

10The only other letter the applicant provided was from the corporate respondent’s lawyer and dated July 9, 2012 (though it appears to be from 2013 as it references the applicant’s June 13, 2013 letter). It was in response to the applicant’s demand for payment for alleged travel and expense claims and pay cheques, and it outlined the corporate respondent’s views on the applicant’s mismanagement and that his claim for expenses was for personal expenses, which they will not pay. They state that if the applicant makes a claim against them, they reserve their right to counterclaim for damages, costs, expenses and any misappropriated funds.

11The applicant has provided no evidence to substantiate his reasons for the delay in bringing his Application. He gave no details of what occurred between July 2012 when he tried to get the respondents to pay him and his June 13, 2013 letter to the corporate respondent’s lawyers. He filed this Application four days after the corporate respondent’s letter of September 23, 2013. Despite the indication that the corporate respondent would counterclaim against him, there is no evidence in the correspondence to show blackmail.

12The applicant also provided no details with respect to what alleged threats the respondents made against him that resulted in his calling the police, nor did he provide any incident reports. He also provided no details of why he feared for his life.

13Therefore I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code, and the Tribunal has no jurisdiction to deal with this Application. Consequently, it is not necessary to determine whether the respondents would suffer any substantial prejudice as a result of the delay.

14For these reasons, the Application is dismissed.