Baker v. Bryan College of Applied Health and Business Sciences, 2013 HRTO 219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melanie Baker

Applicant

-and-

Bryan College of Applied Health and Business Sciences,

Jack Morrison, Susan Pincente and Ashley Lye

Respondents

DECISION

Adjudicator: David Muir

Date: February 6, 2013

Citation: 2013 HRTO 219

Indexed as: Baker v. Bryan College of Applied Health and Business Sciences

WRITTEN SUBMISSIONS

Melanie Baker, Applicant

No one appearing

Jack Morrison, Susan Pincente and Ashley Lye, Respondents

Henry Dinsdale, Counsel

Bryan College of Applied Health and Business Sciences, Respondent

Stephen A. Bernofsky, Counsel

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 disability and sex.

2The respondents have requested that this Application be dismissed because of delay. The parties were directed to file submissions on this issue. The applicant does not appear to have done so although the time for doing so has passed.

3The Application is dismissed. In her Application the applicant makes a number of allegations of discrimination during the course of her employment with the organizational respondent beginning in December 2009 and ending with her dismissal from employment on April 25, 2011. The Application was filed on May 22, 2012.

4Sections 34(1) and (2) of the Code provide:

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 Tribunal has interpreted these provisions of the Code as requiring that 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. The provision has been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

6The Tribunal may consider an untimely Application where the applicant is able to establish that there is a good faith explanation for the delay and that there would be no substantial prejudice to any party should the Application proceed. There does not appear to be any issue of prejudice here but all respondents submit that the applicant has failed to establish a good faith explanation for the delay. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must provide a reasonable explanation and must show something more than the absence of bad faith. See Corrigan v. Peterborough Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Miller, above.

7In her Application the applicant appears to acknowledge that the Application was filed out of time but states that one of the individual respondents is central to the issues. As indicated the applicant did not respond to the respondents’ position on the delay issue. Her only comment on these issues was an apparent explanation for delays on her part as part of the processing of this Application.

8I am not satisfied that the applicant has met her burden of establishing a good faith explanation for the delay in this case and accordingly the application is dismissed.

OTHER MATTERS

9The applicant had previously filed a Request for Order During Proceedings seeking to add another organizational respondent. In light of my conclusions above there is no need to deal with this issue.