Wu v. Maple Lodge Farms Ltd., 2014 HRTO 1311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ji Xia Wu

Applicant

-and-

Maple Lodge Farms Ltd. and Bob May

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: September 4, 2014

Citation: 2014 HRTO 1311

Indexed as: Wu v. Maple Lodge Farms Ltd.

WRITTEN SUBMISSIONS

Ji Xia Wu, Applicant

Self-represented

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 13, 2014. In her Application, she alleged that the respondents treated her badly. She alleged that the respondents discriminated against her because of race and place of origin by assigning her to do work that was only performed by men and stronger women. She alleged that she ended up becoming injured on the job as a result of the assignment. In her Application, she indicated that her union filed a grievance on her behalf.

2In her Application, the applicant indicated that the last incident of alleged discrimination occurred on August 4, 2011. She noted in the Application that she did not file her Application within the one year time limit in the Code because she relied on her union which, she claims, failed to fully support her.

3On June 27, 2014 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction. The Notice noted that the Application was filed more than one year of the last incident of discrimination described in the Application. The applicant was directed to respond to the delay issue raised in the NOID.

4By correspondence dated August 9, 2014, the applicant submitted that there was only a 2 month delay in her case. She also submitted that she only recently found out about the Tribunal. She stated that,when she sought help from a community legal clinic, the clinic did not advise her of the one year time limit for filing Applications under the Code. She also stated that she trusted her union but that the union has not resolved her case. Finally, the applicant submitted that she is continuing to suffer effects from her injury.

5Under 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.

6For 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.

ANALYSIS WITH RESPECT TO DELAY

7Section 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.

8Although the applicant claims that only a 2 month delay has passed in this case, it is clear from the Application that it was filed more than two and a half years after the last incident of alleged discrimination.

9The Tribunal may 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. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application 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 to file an application within one year when pursuing a human rights claim.

10I do not find that the applicant has established a good faith reason for the delay in filing her Application. Although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must establish that he or she had no reason to make inquiries about his or her rights. See Simmons v. Ontario (Transportation), 2010 HRTO 1884. In this case, the applicant did make inquiries about her rights through her union and through a legal clinic. The fact that the legal clinic allegedly did not advise her of the one year time limit for filing Applications under the Code is not a good faith reason to permit the late filing of the Application in the circumstances of this case. The Application makes clear that she pursued her rights through her union. The fact that the union has not resolved her claim is not a good faith reason to permit the late filing of this Application.

order

11I have considerable sympathy for the difficulties faced by the applicant in relation to her injuries. However, for the above reasons, the Application is dismissed as untimely.