Dahir v. Corvin Building Maintenance Ltd., 2014 HRTO 1149

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Halima Dahir

Applicant

-and-

Corvin Building Maintenance Ltd.

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 31, 2014

Citation: 2014 HRTO 1149

Indexed as: Dahir v. Corvin Building Maintenance Ltd.

APPEARANCES

Halima Dahir, Applicant

John No, Counsel

Kiran Kang, Student-at-law

Corvin Building Maintenance Ltd, Respondent

Martin Rabinovitch, 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 creed, ethnic origin, place of origin and reprisal.

2In a Case Assessment Direction issued to the parties on January 27, 2014 the Tribunal directed that a half day preliminary hearing be held to hear the parties’ submissions on a delay issue raised by the respondent.

3A hearing was held in Toronto on July 4, 2014 in Toronto. All parties participated. I heard evidence from the applicant and two employees of the respondent. At the conclusion of the evidence the parties made submissions. At the conclusion of the submissions it was agreed that the parties would provide brief written submissions on the applicability of the “post box” rule to the circumstances of the applicants’ filing of this Application. However in subsequent correspondence both parties agreed that the “post box” rule would have no bearing on the outcome of this case.

4For the reasons that follow the respondent’s request that this Application be dismissed for delay is denied because in my view the Application was not filed beyond the one year time limit provided in the Code. In the end the issue is determined by my conclusion that where an employer terminates an employee for allegedly discriminatory reasons the final act of discrimination is the date the termination is effective not the date that the employee received the notice of their dismissal from employment.

5The facts are not complicated and given my conclusion on the legal question above the material facts are not in dispute. The applicant was employed by the respondent for a period of four or five months. The applicant was provided a notice of the termination of her employment dated November 2, 2012 on either November 2 or November 5, 2012. The notice provided that her employment was terminated effective November 9, 2012. It is agreed that the applicant worked throughout the notice period. The Application which was signed on November 1, 2013 and said to have been mailed was stamped as received by the Tribunal on November 6, 2013. If the trigger date for the time limit in section 34 of the Code is the date the notice was given to the applicant, either November 2, or November 5, 2012 it would be out of time. If on the other hand the trigger date is the effective date of the termination, November 9, 2012, then the Application is not out of time.

6In my view the effective date of the Notice of termination, in this case, is the final act of discrimination in what is otherwise clearly a series of incidents of alleged discrimination beginning in the weeks immediately pre-dating the applicant’s dismissal. The parties provided no cases directly on point although several were referred to including Garrie V. Janus Joan Inc., 2012 HRTO 1955 and O’Flanagan v. Ontario (Education), 2013 HRTO 121. In my view these cases although suggestive of the approach I take below do not squarely address the question.

7The respondent argued that the final act of discrimination is at the latest when the applicant is informed of the allegedly discriminatory decision. I do not agree. While I accept counsel’s submission that such decisions are rarely if ever changed or revoked the fact is that a decision to dismiss a person from their employment is not irrevocable and can be changed. Such decisions are often contingent on a number of circumstances and depending on the length of the notice period the opportunities for a change of decision can increase. Although the provision of notice to an employee of pending dismissal is clearly a statement of intent until effective the discrimination is not actually experienced by the employee when the employment relationship is in fact at an end. For these reasons I find that in this case the final act of discrimination was the effective date of an allegedly discriminatory dismissal from employment.

8Both parties have agreed to mediation. The Registrar will schedule a mediation in due course.

9I am not seized of this case.