Damiani v. Sobeys Capital Incorporated, 2014 HRTO 1397

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Damiani

Applicant

-and-

Sobeys Capital Incorporated

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: September 18, 2014

Citation: 2014 HRTO 1397

Indexed as: Damiani v. Sobeys Capital Incorporated

WRITTEN SUBMISSIONS

Sarah Damiani, Applicant

Shale Wagman, Counsel

Sobeys Capital Incorporated, Respondent

Carolyn McKenna, Counsel

1This is an Application filed on April 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 sex, sexual solicitation or advances, sexual orientation and family status.

Background

2In her Application, the applicant alleges that a co-worker harassed her at work on or about July 16, 2012 while she was employed by the respondent. The applicant indicated that this was the last incident and states that she filed the Application more than one year after this incident because she commenced an Action in Court. The Court dismissed the Action and the applicant states that the Court directed her to this Tribunal. The respondent filed a Response in which, amongst other things, it submitted that the Tribunal should dismiss the Application for delay because the applicant filed the Application more than one year after the alleged incident of harassment occurred.

3By letter dated August 6, 2014, the Tribunal directed the applicant to file a Reply (Form 3) responding to the respondent’s request to dismiss the Application for delay. The applicant filed a Reply on August 22, 2014. The applicant submitted that she commenced an Action in Barrie Small Claims Court within one year of the date on which the incident of harassment occurred. The applicant submitted that the Trial Judge dismissed the applicant’s claim without prejudice to her right to file an application with this Tribunal. Consequently, the applicant submitted that there is no prejudice to the respondent.

Analysis and Decision

4Section 34(1) and (2) state as follows:

(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.

5The applicant filed the Application on April 23, 2014, more than one year after the last alleged incident. The fact that the applicant commenced a proceeding in another forum within one year of the last incident, which occurred on July 16, 2012, is irrelevant. The applicant does not suggest that her allegations amount to a series pursuant to section 34(1)(b); therefore, the Tribunal may not deal with the incidents described in the Application unless it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Consequently, the fact that the applicant initiated a civil proceeding before turning to the Tribunal does not, in my view, amount to a good faith explanation for her delay. Having found that the applicant has not established that the delay in filing the Application was incurred in good faith, I need not address the issue of prejudice. Regarding the applicant’s submissions that the Small Claims Court dismissed the applicant’s Action “without prejudice” to any remedy the applicant may have under the Code before this Tribunal; this simply means that nothing in the Court’s decision prevented her from filing a human rights application. The Court did not make any comment to the effect that the requirements of sections 34(1) and 34(2) would not apply to such an application. Accordingly there is no merit in the applicant’s submissions in this regard.

8The Application is dismissed for delay