Stone v. Millwright Regional Council of Ontario, Local 1592, 2013 HRTO 278

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Stone

Applicant

-and-

Millwright Regional Council of Ontario, Local 1592 and CFJ Nuclear Contractors Ltd.

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: February 15, 2013 Citation: 2013 HRTO 278 Indexed as: Stone v. Millwright Regional Council of Ontario, Local 1592

WRITTEN SUBMISSIONS

Stephen Stone, Applicant

Cézanne Charlebois, Counsel

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 disability as well as reprisal or threat of reprisal. The Application was filed with the Tribunal on August 31, 2012.

2On November 29, 2012 the Tribunal issued a Notice of Intent to Dismiss ("NOID") the Application as against Black & MacDonald Limited ("Black & MacDonald") as it appears that the Application was filed more than one year after the alleged events involving it.

3The applicant responded to the NOID with written submissions received by the Tribunal on December 19, 2012.

ANALYSIS AND DECISION

4Section 34 (1) and (2) of the Code read 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 allegation as against Black & MacDonald is that in August 2010 it failed to accommodate the applicant's work related lower back injury. The applicant concedes that this event occurred well beyond the time limit set out in section 34; however, he argues that the delay in filing against Black & MacDonald was incurred in good faith and there is no substantial prejudice to any person affected by the delay by permitting the Application as against Black & MacDonald to go forward.

6The limitation period for filing an application with the Tribunal as set out in section 34 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 an application within one year, when he or she seeks to pursue a human rights claim. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241).

7The Tribunal has held that in order to establish that a delay in filing an application was incurred in good faith under section 34(2) of the Code an applicant must provide some reasonable explanation for the delay. (See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.)

8In his submissions the applicant acknowledged that he was aware of his right to seek a remedy under the Code and that he in fact sought legal counsel on August 3, 2010. He indicates though that he decided not to pursue a human rights claim at that time because he was concerned about "potential, real or anticipated repercussions from the union, his co-workers and his future employers."

9I cannot accept that the applicant's fear of reprisal justifies the delay in filing the Application. I note that the applicant did make a WSIB claim with respect to his low back injury which was denied in April 2009 and that in December 2010 he appealed that decision which is still making its way through the WSIB system. He has provided no explanation as to why pursuing his rights under the Code as against Black & MacDonald caused him to fear retribution whereas this fear did not prevent him from making a WSIB claim. In any event, the Code has specific provisions regarding reprisal and threat of reprisal. I am not satisfied the fear of reprisal could, generally, amount to a good faith basis for delay. (See N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282).

10It is clear that the applicant faces many challenges in his circumstances. Many applicants before the Tribunal do as well. Nonetheless, the applicant has not satisfied me that the delay in filing his Application as against Black & MacDonald was in good faith within the meaning section 34(2) of the Code.

11It is not necessary to address the question of prejudice.

12For these reasons the Application as against Black & MacDonald is dismissed. Black & MacDonald is removed from the Application and the style of cause is amended accordingly.

13I am not seized of this case.