Bogdan Koscik v. Lakeridge Health Corporation, 2014 HRTO 1170

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bogdan Koscik

Applicant

-and-

Lakeridge Health Corporation

Respondent

DECISION

Adjudicator: David Muir Date: August 6, 2014 Citation: 2014 HRTO 1170 Indexed as: Koscik v. Lakeridge Health Corporation

WRITTEN SUBMISSIONS

Bogdan Koscik, Applicant

Self-represented

1This is an Application filed on May 23, 2014 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 age.

2In his Application the applicant states that he was an employee of the respondent. He was dismissed from his employment in June 2010. He filed a grievance which proceeded to arbitration where it was dismissed in a decision dated March 12, 2012. The applicant states the he consulted a lawyer in December 2013 who advised him that he may have been discriminated against.

3The applicant also filed an application for judicial review of the arbitration award which was also dismissed. The applicant then filed a duty of fair representation complaint under the Labour Relations Act which was similarly dismissed. This Application was filed on May 23, 2014.

4On June 26, 2014 the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because it appeared that the Application was outside of the Tribunal’s jurisdiction to decide being filed almost four years after the alleged acts of discrimination.

5The Application is dismissed.

6Sections 34(1) and (2) of the Code provide:

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.

7This Application is out of time. It was filed almost four years after the incidents of alleged discrimination described by the applicant. Accordingly unless the applicant can establish a good faith explanation for the delay the Application must be dismissed. I would also observe that at this preliminary stage before the Application has been served, the Tribunal has held that it must be plain and obvious that an Application is out of time if an Order dismissing it. See Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

8In relation to the delay issue the Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The limitation period 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 their application within one year, when they may seek to pursue a human rights claim. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241).

9The Tribunal has also 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.

10In her Application the applicant asserts that he was ill for extended periods of time after his dismissal from employment in June 2010. However the applicant also states that he pursued several other legal proceedings including a grievance arbitration, an application for judicial review and a proceeding before the Ontario Labour Relations Board. This record of related litigation belies the applicant’s claim to be sufficiently disabled to be unable to file this Application. The Tribunal has also held that pursing other legal proceedings in relation to the issues in dispute is not a reasonable explanation for delay in filing an Application. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic School District School Board, 2008 HRTO 424 and Quimado v. S.A. Armstrong, 2009 HRTO 110.

11I am satisfied that it is plain and obvious that this Application is out of time and that there is an insufficient basis to conclude that there is a good faith explanation for the delay. The Application is dismissed.