Furtney v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 1343

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barrie Furtney

Applicant

-and-

Toyota Motor Manufacturing Canada Inc.

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: September 11, 2014

Citation: 2014 HRTO 1343

Indexed as: Furtney v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Barrie Furtney, Applicant

Self-represented

Toyota Motor Manufacturing Canada Inc., Applicant

Ted Kovacs, Counsel

Introduction

1By Application dated June 2, 2014, the applicant alleged that the respondent discriminated against him because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). Specifically, he alleged that the respondent discriminated against him in April 2012 when it did not hire him for a position in its human resources department but instead hired three women.

BACKGROUND

2In its Response, the respondent requested that the Tribunal dismiss the Application as untimely. The respondent noted that the alleged incident of discrimination occurred in April 2012 and the Application was not filed until June 2, 2014. In the Application, the applicant refers to a conversation with the respondent’s President on June 3, 2014. However, the respondent submitted that the applicant has made no allegation that this conversation was discriminatory.

3The applicant submitted that the Application is timely because all the people involved in the case still work with the respondent and because he was acting in good faith and working through his situation. He stated that he did not realize that the cause of his demotion was due to a prejudice toward males until his conversation with the respondent’s President in June 2013.

FINDINGS

4Under 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.

5In my view, it is plain and obvious that the Application is untimely and should be dismissed for delay.

6Section 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.

7The applicant filed his Application over two years after the alleged incident of discrimination. Therefore, the allegations against the respondent relate to events that occurred well before the one year timeframe set out in s. 34 of the Code.

8The Tribunal can 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. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for his failure to pursue his rights under the Code in a timely manner.

9I do not find that the applicant has established a good faith reason for the delay in filing his Application. Stating that an Application was filed in good faith is not enough. The Tribunal has consistently held that 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. See Miller v Prudential Real Estate, 2009 HRTO 1241.

10As well, it is not sufficient to claim that the applicant was working through his situation or that he did not realize that he might have been discriminated against. In this case, the applicant was aware of the facts underpinning his claim in April 2012. His conversation with the respondent’s President did not change any of the relevant facts. According to the applicant, the respondent’s President approached him in June 2013 and asked him how he was. When the applicant said that another respondent representative had done nothing for him, the respondent’s President said “Barrie, we have to do something for you. You are a good guy and we should do something for you.” The applicant interpreted this statement as a suggestion that the respondent should do something to make up for the wrong it had done to him by not hiring him for the position in April 2012.

11There may be cases where applicants can legitimately claim that their delay was incurred in good faith because they could not reasonably have known that they might have had the basis for a claim under the Code until after the one year time frame set out in s. 34(1). See Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23 and Iyirhiaro v. Toronto Transit Commission, 2011 HRTO 462 at paras. 11-12. However, this is not one of those cases. The applicant knew that he was not hired for the human resources position and that instead three women were hired. There is nothing in the conversation with the respondent’s President that can reasonably be seen to add to the factual matrix underlying the applicant’s claim. He had reason to make inquiries and file any application at the time he was not hired for the position, but did not do so until over two years later. In these circumstances, I find that the applicant has failed to establish a good faith reason for his delay in filing the Application.

12In the absence of a good faith reason for the delay, it is not necessary for me to consider whether substantial prejudice would result from the delay.

ORDER

13For the above reasons, the Application is dismissed as untimely and therefore outside the Tribunal’s jurisdiction.