DaSilva v. Swiss Chalet Restaurant o/a Eagle Rock Hospitality, 2013 HRTO 708

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlene DaSilva

Applicant

-and-

Swiss Chalet Restaurant o/a Eagle Rock Hospitality and Cara Operations

Respondents

DECISION

Adjudicator: David Muir

Date: April 26, 2013

Citation: 2013 HRTO 708

Indexed as: DaSilva v. Swiss Chalet Restaurant o/a Eagle Rock Hospitality

WRITTEN SUBMISSIONS

Charlene DaSilva, Applicant

Self-represented

Swiss Chalet Restaurant o/a Eagle Rock Hospitality Respondent

Andy Balaura, Counsel

Cara Operations, Respondent

Sheryl L. Johnson, Counsel

1This is an Application filed by Charlene Dasilva (the applicant) on behalf of Roberto DaSilva (the claimant) under section 34(5) of Part IV 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.

2This Application was filed on September 21, 2012. In the Application the applicant advised that the date of the last incident of discrimination was December 21, 2012 more than one year prior to the date the Application was filed and as such the Application is out of time unless the applicant can establish a good faith explanation for the delay. The parties were directed to deliver and file their submissions on the delay issue in a Case Assessment Direction issued on October 23, 2012. The parties filed their submissions but the applicant indicated that she needed an extension of time to file further medical documents. Over the objection of the respondents, the applicant was provided with an extension to deliver and file further medical documents and submissions with respect to them. These materials were received and responded to by the respondent Eagle Rock.

3Section 34 of the Code states, in part:

(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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” The limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. The provision has been found to be mandatory subject to section 34(2) which allows the Tribunal to consider an otherwise untimely application if the applicant is able to establish a good faith explanation for the delay.

5When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue their rights under the Code in a timely manner. 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 show something more than the absence of bad faith.

6In her submissions, the applicant argues that the delay in filing the Application was due in part to the claimant’s addiction to alcohol and his depression. The applicant provided a number of documents which tend to support the applicant’s contention that the claimant has struggled with alcohol since before the events giving rise to the Application and continues to do so. However there is no substantial evidence that the applicant who is a licenced paralegal was incapable of filing the Application and no substantial evidence to establish that the claimant could not authorize the filing of an application by the applicant on his behalf in a timely manner. Although the claimant was incarcerated for a period of time for impaired driving in 2011 the material indicates that he was able to make applications for work and was able to secure some employment although it is said that these positions were beneath the applicant skills and abilities and did not last long.

7In her submissions, the applicant also states that the claimant was reluctant to take legal action against the respondents and delayed it until he concluded that he needed treatment for his condition that he would only be able to obtain if he could succeed in establishing a Code violation by these respondents and be reinstated to his employment benefits. This is inconsistent with the applicant’s claim that the claimant was not aware of his rights and inconsistent with the submission that he was incapable of causing this Application to be filed before it was for reasons related to his alleged disability.

8I find that there is no evidence that the applicant was unable to file the Application on the claimant’s behalf before it was and no evidence which establishes that the claimant was incapable of authorizing its filing when it was. I am not satisfied therefore, notwithstanding the unfortunate circumstances of the claimant, that there is a good faith explanation for the delay. Having concluded that there is no good faith explanation for the delay there is no need to consider whether or not any party would suffer any prejudice by the delay if the Application were to proceed further.

9The Application is dismissed.