Colhoun v. Hydro One Networks Zone 2, 2013 HRTO 312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles Colhoun Applicant

-and-

Hydro One Networks Zone 2 Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: February 25, 2013 Citation: 2013 HRTO 312 Indexed as: Colhoun v. Hydro One Networks Zone 2

Introduction

1By Application dated January 16, 2013, the applicant alleges that the respondent violated the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) when it terminated his employment in August 2010.

BACKGROUND

2In his Application, the applicant claims that the respondent discriminated against him because of his age when it terminated him in August 2010. He also alleges that some of his supervisors and co-workers made age-related comments and innuendos. In his Application, the applicant also alleges that his union treated him unfairly because he participated in an attempted raid of the union by a rival union.

3On November 7, 2012, the Tribunal issued to the applicant a Notice of Intent to Dismiss (“NOID”) because it appears the Tribunal has no jurisdiction for the following reasons:

a. the Application was filed more than one year after the incident of discrimination and there were no facts to indicate the delay was in good faith; and

b. the Application fails to identify any specific acts of discrimination within the meaning of the Code.

4Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

5For the reasons set out below, I have determined that it is plain and obvious that the Application is untimely and should be dismissed for delay. I therefore do not need to consider whether the applicant can demonstrate a link or connection between the allegations raised and discrimination under the Code.

ANALYSIS WITH RESPECT TO DELAY

6Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents.

7In response to the NOID, the applicant submitted a copy of a letter he filed with the Ontario Labour Relations Board (“OLRB”) in support of a request for reconsideration he had filed with the OLRB. The request sought reconsideration of the Board’s decision to dismiss as untimely a duty of fair representation complaint he had filed against his union. In the letter, the applicant explains that there was an eighteen month delay in filing his complaint to the OLRB because he spent three months recuperating from a heart attack and then could not find a lawyer who would take his case. He also explains that the delay arose because he spent a period of time working in a remote location, suffered a work place injury and subsequently spent a year seeking approval for Old Age Security benefits. In his letter, the applicant also mentions what appears to be a settlement of a grievance relating to his termination which he claims to have been coerced into signing in October 2010.

8The applicant filed his Application almost two and a half years after he was terminated. Therefore, the allegations against the respondent relate to events that occurred well before the one year timeframe set out in s. 34 of the Code.

9The Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for his failure to pursue his rights under the Code in a timely manner.

10I do not find that the applicant has established a good faith reason for the delay in filing his Application. In some cases, an applicant has established that a personal characteristic included as a ground of discrimination under the Code is closely connected to his failure to file his Application on time. See, for example, Kelly v. CultureLink Settlement Services, 2010 HRTO 977. In this case, the applicant has not given any information that could establish that a disability, or any other Code-related circumstance, might explain his delay of almost two and a half years before filing his Application.

11Even if the applicant’s periods of illness/injury were considered to be a legitimate reason for his delay, these periods of illness would only explain a small portion of the applicant’s delay. Most of the applicant’s delay arose from his attempts to retain legal counsel, his difficulty accessing a computer at his remote work location and his attempts to secure Old Age Security benefits. I find that these reasons do not constitute good faith reasons to justify the delay in this case. In the absence of a good faith reason for the delay, it is not necessary for me to consider whether substantial prejudice would result from the delay.

12The Application is dismissed as untimely and therefore outside the Tribunal’s jurisdiction.

13I am not seized of this matter.