Meshell Dupé v. Toronto Youth for Christ o/a Youth Unlimited, 2014 HRTO 1351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meshell Dupé

Applicant

-and-

Toronto Youth for Christ o/a Youth Unlimited

Respondent

DECISION

Adjudicator: Paul Aterman

Date: September 12, 2014

Citation: 2014 HRTO 1351

Indexed as: Dupé v. Toronto Youth for Christ o/a Youth Unlimited

WRITTEN SUBMISSIONS

Meshell Dupé, Applicant

Self-represented

Youth Unlimited for Christ o/a Youth Unlimited, Respondent

Chelsea Rasmussen, Counsel

introduction

1This Application alleges discrimination with respect to employment because of race, colour and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2This Decision deals with a request by the respondent to have the Application dismissed for delay. For the reasons set out below, the request is granted.

background

3From November 23, 2009 to September 30, 2012 the applicant was employed on a series of fixed-term contracts by the respondent, a faith-based charity. Her job was to assist youth served by the project to enable them to develop a business plan or idea. The applicant alleges that she was subjected to racial harassment by a co-worker, that the respondent’s managers were aware of this harassment and condoned it, and that, rather than discipline the co-worker, the respondent blamed the applicant for conflict and used this as a reason to terminate her contract.

4The respondent denies these allegations and states that the applicant’s contract was terminated due to performance problems. These included an inability to get along with the co-worker whom the applicant alleges harassed her. The respondent claims that it tried to assist the applicant in overcoming these problems, but that she did not respond positively to those efforts and that is why her last contract was not renewed when it came to an end on September 30, 2012.

5In June and July of 2012 the applicant raised specific concerns with the respondent, stating that she felt she was being racially harassed by her co-worker. The respondent began an internal investigation into these allegations, but not until August of 2012. The applicant met with one of the respondent’s managers in September of 2012. On October 10, 2012 the respondent wrote to the applicant apologising for its delay in investigating her concerns and concluding that there was an insufficient basis to support her complaints.

6The applicant filed this Application on November 1, 2013. In its Response the respondent requests dismissal on the ground that the Application was filed more than a year after the last alleged incident of discrimination.

7The applicant does not dispute that the Application was filed late, but requests that the Tribunal allow her Application to continue because the delay was due to circumstances beyond her control. Specifically, she states that depression, in combination with other psychological disabilities, impaired her ability to take decisions and act in the period following the end of her contract. The stress related to these difficulties was compounded by the fact that she was having to deal with acts of vandalism and violence in the area where she was living. Eventually she had to leave her apartment.

8In support of her submission that the delay in filing her Application was incurred in good faith, she has provided a letter from her therapist. The letter confirms the diagnosis of her disabilities. It states that these conditions impair her ability to complete tasks on time, despite being motivated to do so.

9The respondent’s position is that there are facts in the relevant time period that contradict the applicant’s assertion that she was unable to take the necessary steps to file her Application in time. These include the applicant having sought legal advice from various sources in relation to her Application, attending court in relation to her housing issue, conducting a job search in this period and eventually obtaining employment. According to the respondent the letter from the applicant’s doctor is vague, lacks detail and the above facts – which are supplied by the applicant – do not support an argument that the delay was incurred in good faith.

analysis

10Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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.

11If I assume that the last incident of alleged discrimination was the October 10, 2012 letter to the applicant communicating the results of the respondent’s internal investigation, then the one year time limit for filing expired on October 9, 2013. In this case the application was filed on November 1, 2013.

12The issues to be determined here are whether the applicant’s explanation for the delay in filing meets the test of a delay incurred in good faith and whether any substantial prejudice will result to any person affected by the delay.

13In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paras.24-25 the Tribunal discussed the good faith requirement as follows:

In my view, where an applicant seeks 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 Code requires 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. This is a mandatory provision, subject only to section 34(2). The mandatory one-year 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

14In Dionne v. Toronto (City), 2011 HRTO 317 at para. 9 the Tribunal applied these general principles to a situation where the applicant attributed the delay in filing to a disability and stated:

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

15In this case the applicant has not presented medical evidence which meets the test set out in Dionne. The doctor’s letter provided by the applicant in support of her argument is brief and does not state when he saw her. It speaks in general terms of the applicant being unable to meet deadlines, but does not specifically address the issue in this case, which is whether she could complete and file her Application in time.

16The lack of specificity in the doctor’s letter is to be contrasted with statements which come from the applicant about what she was doing in this period. In my view the applicant’s ability to seek out legal advice from different sources in relation to her Application, the fact that she went to court over a housing matter, conducted a job search and found employment in this period is not indicative of a person who was so disabled that they could not file an Application. Given these facts, as well as the lack of specificity in the doctor’s letter, I conclude that it was more likely than not that the applicant could have filed her Application on time. It follows from this that the delay in filing was not incurred in good faith.

17Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (see: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

order

18The Application is dismissed.