Farzana Ghasemi v. 2261536 Ontario Inc., 2013 HRTO 624

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farzana Ghasemi

Applicant

-and-

2261536 Ontario Inc., Swiss Chalet # 1215

Respondent

DECISION

Adjudicator: Eric Whist

Date: April 15, 2013

Citation: 2013 HRTO 624

Indexed as: Ghasemi v. 2261536 Ontario Inc.

APPEARANCES

Farzaneh Ghasemi, Applicant

Alexandre Martel, Counsel

2261536 Ontario Inc., Swiss Chalet # 1215, Respondent

Kecia Podetz, Counsel

1This is an Application filed on June 21, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination with respect to employment because of race, ancestry, place of origin, ethnic origin and age. The Application alleges that a number of incidents of discrimination took place culminating in the termination of the applicant's employment on April 19, 2011.

2On August 15, 2012, the respondent filed a Request for an Order During Proceedings ("RFOP") requesting that the Application be dismissed on the basis that it was not filed within the one-year time limit as required under section 34(1) of the Code and that the applicant had not shown that the delay in the filing of her Application was incurred in good faith as required by section 34(2) of the Code.

3On October 22, 2012, the applicant filed written submissions opposing the respondent's RFOP. On October 30, 2012 the Tribunal issued Interim Decision 2012 HRTO 2066, which determined that a preliminary hearing by conference call would be held to consider whether the Application should be dismissed for delay.

4The hearing was held on March 28, 2013. I heard submissions from both parties. In making my decision I have also considered information relevant to the issue of delay that was contained in the Application and Response and the respondent's RFOP and the applicant's October 22, 2012 written submissions. It was agreed that a doctor's note and three letters dating from April to June 2012 were also relevant information for the purposes of the preliminary hearing. I have also considered the case law provided by the parties.

BACKGROUND

5The applicant was employed by the respondent as a server in its Barrhaven restaurant.

6On April 16, 2012, the applicant's counsel wrote a letter to the respondent stating that he had been retained by the applicant and that the applicant believed she had been "pushed out" of her employment, in part, because the respondent favoured younger employees. The applicant's counsel states in his letter that he is of the view that the applicant was wrongfully dismissed and that, accordingly, the applicant is seeking additional reimbursements otherwise she will pursue legal action against the respondent.

7On May 6, 2012, the respondent wrote a letter in response to the applicant's demand letter refusing the request for a financial settlement and indicating the respondent's willingness to defend itself if the applicant pursued litigation.

8On June 21, 2012, the applicant's counsel filed the Application with the Tribunal. He explains in a covering letter that the Application was being filed beyond the required one year time limit because the applicant had been suffering from severe depression arising from the discriminatory treatment she received from the respondent.

9A doctor's note was provided along with the Application. It states:

I have been Ms. Ghasemi's family physician since 2008. Since her termination from her position as a waitress from Swiss Chalet, Ms. Ghasemi has had worsening symptoms of depression and anxiety. She has complained of low mood, low motivation increasing fatigue and worry. In addition she had had trouble with insomnia.

DECISION

10Section 34 of the Code 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.

11The applicant does not dispute that her Application fails to meet the one year requirement set out in section 34(1) given that the last alleged incident of discrimination occurred on April 19, 2011, and the Application was filed on June 21, 2012, one year and two months later. Rather, the applicant relies on section 34(2) submitting that the delay in the filing of her Application was incurred in good faith and no substantial prejudice would result for the respondent if the Application was to proceed.

12The Tribunal has held that individuals must act with due diligence and file an Application within the mandatory one year time limit as this is consistent with the Code's objective that human rights claims be dealt with fairly and expeditiously. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal has further held that in order to establish that a delay in the filing of an application was incurred in good faith under section 34(2) 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. The Tribunal has also set a fairly high onus on applicants to provide a reasonable explanation for a delay. See Miller above.

13The applicant's principle contention is that she was suffering from severe depression and anxiety as a result of the termination of her employment from the respondent which prevented her from filing her Application on a timely basis. The applicant's counsel submits that the note from the applicant's family physician is documentary evidence that supports this contention.

14The Tribunal does accept that a delay may be in good faith because of an applicant's disability. See Dionne v. Toronto (City), 2011 HRTO 317. However, the Tribunal has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

15I do not find the medical documentation produced by the applicant establishes that she suffered from a disability that prevented her from filing her Application on a timely basis. The doctor's note provided by the applicant does not indicate that the applicant suffers from "severe" depression as counsel for the applicant maintained but rather that the applicant had worsening symptoms of depression (and anxiety). It does not indicate when the applicant was seen by her family physician or whether the physician's assessment is based on an examination and assessment or on the applicant's self-reporting. In my view, the medical document provided by the applicant does not indicate the applicant's condition was so debilitating that she was incapable of carrying out certain actions including proceeding with an Application on a timely basis.

16Moreover, and apart from any findings that I make concerning the medical evidence, I also find it significant that the applicant was able to take some action in relation to her employment with the respondent within one year of her dismissal. On April 16, 2012, the applicant's counsel sent a demand letter to the respondent in which he argued that the applicant had been wrongfully dismissed. The letter also refers to the applicant having been subject to discriminatory treatment because of her age (alleging that the applicant was being "pushed out" in favour of younger employees). In my view, the applicant has failed to explain why she was able to retain and instruct counsel for this purpose and not for the purpose of filing an Application within the required one year time limit.

17The applicant's counsel submits that it was also reasonable for the applicant to first engage with the respondent by means of the demand letter before considering filing an Application and that this was a timely, good faith effort to try to resolve her differences with the respondent.

18The applicant can choose what actions she may wish to take in relation to her employment with the respondent. However, pursuing a demand letter and potentially a wrongful dismissal action does not constitute a good faith reason for the applicant to then disregard the one year time limit for filing an Application. The Tribunal has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one's rights under the Code constitutes a good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 670.

19The applicant's counsel also submits that the delay in filing is relatively minor, only 60 days, and that this delay has not garnered the applicant an advantage nor has it prejudiced the respondent.

20The Tribunal has held that the length of the delay in filing an Application is a factor to be considered in determining whether such delay was incurred in good faith. See Stathis v. Thyssenkrupp Fabco, 2009 HRTO 294. However, an applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith, as the Tribunal does not have jurisdiction to hear Applications filed outside the time permitted by the Code unless the delay was incurred in good faith (and no substantial prejudice would result to anyone affected by the delay). See Cartier above. In the present case the applicant relies on her medical condition to explain the 60 day delay. As I have already indicated, the applicant has failed to establish that her medical condition was so debilitating that she could not have filed an application within the required one year time period.

21The applicant's counsel referred to the applicant having limited financial resources and that this affected her ability to pursue her Application in a timely fashion. Counsel for the applicant did not reference any evidence regarding the applicant's financial resources. Moreover, this general assertion is not sufficient to establish a reasonable explanation for her failure to file an Application on a timely basis. All applicants, notwithstanding their financial circumstances, are subject to the same statutory one year time limit and must act diligently to ensure their application is filed in a timely basis. See Moro v. Thames Valley District School Board 2012 HRTO 436

22I find that the applicant has not established that the delay in filing her Application was incurred in good faith as required by section 34(2) of the Code.

23The Tribunal has held that if an applicant fails to demonstrate 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 Non-Contact Hockey League, 2009 HRTO 579.

24For all these reasons, the Application is dismissed.