Terrance Hunter v. Thompson Electric Ltd., 2013 HRTO 2118

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terrance Hunter

Applicant

-and-

Thompson Electric Ltd.

Respondent

DECISION

Adjudicator: Eric Whist

Date: December 24, 2013

Citation: 2013 HRTO 2118

Indexed as: Hunter v. Thompson Electric Ltd.

WRITTEN SUBMISSIONS

Terrance Hunter, Applicant

Self-represented

Thompson Electric Ltd., Respondent

Christopher Edwards, Counsel

Introduction

1This is an Application filed on September 25, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. The Application identifies July 16, 2012 as the date of the last incident of alleged discrimination. The Application indicates that the reason for the delay in filing his Application was because he was only recently informed by a WSIB (Workplace Safety and Insurance Board) Adjudicator that this may be a human rights case.

2The respondent filed a Response on November 26, 2013, denying that it had discriminated against the applicant. The Response includes a request that the Application be dismissed for delay as it was filed over one year after the last alleged incident of discrimination and as such, was beyond the one-year time frame for the filing of an application set out in section 34(1) of the Code.

3The respondent further submits that the applicant did not provide a reasonable explanation for why the delay was incurred in good faith so as to permit the filing of a late application pursuant to section 34(2). The respondent submits that the applicant was well aware of how to pursue his rights having filed two WSIB claims (unsuccessfully). The respondent submits that the applicant has only commenced his Application after determining that his claims for WSIB benefits were denied. It submits that this constitutes “forum shopping” and does not constitute a good faith reason to allow the Application to proceed. The respondent requests that the Tribunal hold a summary hearing to determine whether the Application should be dismissed as untimely.

4On November 25, 2013, the Tribunal wrote to the applicant enclosing a copy of the respondents’ Response. The Tribunal directed the applicant to include with his Reply to the Response submissions on the request to dismiss.

5The applicant filed his Reply and submissions on December 10, 2013. The applicant submits that he is not “forum shopping” but pursuing his rights under the Code. He submits that he did not know of his Code rights until he was told of them, noting that not everyone is aware of how complaints systems work, including himself. He states that he is agreeable to a summary hearing.

ANALYSIS

6An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay. See Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167, and Brooks v. North York General Hospital, 2010 HRTO 453.

7Section 34 of the Code provides:

(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.

8The applicant does not dispute that his Application fails to meet the one year requirement set out in section 34(1). Rather he relies on section 34(2) submitting that the delay in filing his Application was incurred in good faith.

9The Code clearly states in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal sets out what is required to establish that delay has been 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 applications to provide a reasonable explanation for the delay

10I am satisfied that it is plain and obvious that the delay in filing of the Application was not incurred in good faith. Accordingly, the Application is dismissed. No summary or preliminary hearing is required.

11The Tribunal has repeatedly held that a lack of knowledge of the law does not constitute good faith within the meaning of s. 34 (2). See, for example, Lutz v. Toronto (City), 2009 HRTO 1137; Winston v. University Health Network, 2011 HRTO 1648. These cases stand for the proposition that it is not enough for applicants to show that they were ignorant of their rights under the Code; they must also establish that they had no reason to make enquiries about those rights.

12The information before me is that the applicant did pursue his rights in relation to his injuries by filing complaints with the WSIB. It is one of these injuries that gives rise to his Application to the Tribunal. The applicant clearly had some knowledge about his rights in relation to an injury that affected his ability to work. However, he has provided no reason for why he could not have made enquiries about his rights under the Code.

13The applicant has failed to meet the fairly high onus to provide a reasonable explanation for the delay in filing his Application. The Application is dismissed.

14Having found that there is no good faith explanation for the delay there is no need to determine whether any party would be significantly prejudiced by the delay.