HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aleksander Marcinowski
Applicant
-and-
Olha Kostryba
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Marcinowski v. Kostryba
APPEARANCES
Aleksander Marcinowski, Applicant
Self-represented
Olha Kostryba, Respondent
Self-represented
background
1This Decision explains why this Application, which alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, sex and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), is being dismissed for delay.
2The applicant is a former co-worker of the respondent. The applicant works at a daycare. The daycare is owned by the applicant’s spouse. The respondent worked there from the spring of 2011 until October 12, 2012
3The applicant alleges that, while the respondent worked at the daycare her conduct and speech directed at him, at a co-worker and at some of the children attending the daycare were discriminatory. He also alleges that after she left her employment the respondent continued to direct offensive and harassing comments at him and the co-worker.
4The Code requires that an Application be brought within a year of the last alleged incident of discrimination or, if a series of incidents is alleged, within a year of the last incident in the series. If the Application is brought late, then the Tribunal has no jurisdiction unless the applicant can show that the delay in filing was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.
5The Application was filed on March 26, 2014. The respondent claims that she ceased to be employed at the daycare on October 12, 2012, well over a year before the Application was filed.
6The applicant maintains that the respondent may not have been present at work after October 12, 2012, but she continued to be an employee. He maintains that the applicant received maternity benefits under the Employment Insurance program until November 23, 2013. The applicant argues that this demonstrates that she continued to be an employee. If she continued to be an employee, then her actions after October 12, 2012 are relevant for the purpose of determining whether the Application was brought in a timely manner.
7A teleconference hearing was held on September 29, 2014 to determine whether this Application should be dismissed for delay. After the hearing the parties filed further documents and submissions on the delay issue.
positions of the parties
8The respondent maintains that she quit her employment in October of 2012. In support of this she refers to email exchanges between her and her employer on October 14, 15, 16 and 27 of 2012. She states that the position taken by the employer in all of these emails is clearly that she quit her employment. The applicant also refers to a Record of Employment (“RoE”) issued on October 19, 2012 that contains Code “E” as the reason for issuing the RoE. Service Canada’s guide to completing the RoE indicates that Code E refers to situations where an employee quits their job.
9The applicant’s position is that the respondent had no intention of quitting her job in October. He refers to the same email exchanges and notes that on October 14 the respondent indicates her intention to return to work in a few days. On October 15 the respondent writes that she needs some time off for health reasons (implying an intention on her part to return to work).
10The applicant further argues that because the respondent received maternity benefits until November 23, 2013, she must be considered as an employee during the period when she was receiving those benefits.
11Finally, the applicant maintains that if the Tribunal finds that the Application was not filed in time, there is a good faith explanation for this. He states that in this period the respondent had brought an Application to the Tribunal (2013-14589-I, Olha Kostryba v. Danuta Marcinowska o/a Happyland Youngster University) against her employer (his spouse). He felt that until that dispute was resolved it would not be appropriate for him to initiate an Application naming her as the respondent. The other Application was resolved through a settlement. The applicant was of the view that the other proceeding would be complicated and might not settle if he were to start the present Application while the one naming his spouse as a respondent was still ongoing.
analysis
12I find that the respondent’s employment ended on October 12, 2012, her last day of work at the daycare. While she may have written to her employer immediately afterward stating that she had not quit her job, it is abundantly clear from the email correspondence that the employer viewed the employment relationship to be at an end.
13In response to the applicant’s October 14 email the employer writes:
Did you forget your [sic] quit the job last Friday?
14On October 16 the employer writes:
Walking off the job like you did last Friday constitutes quitting. We run a child care business here not a" club" where you can come and go as you please. We have small children to take care of and they need reliable teachers to tend to them. These children need teachers that are there for them, not quitters! I asked you last Friday to stay and not leave but you said "No" and you left and turned in the keys with a quitting gesture.
You walked off your job and that means you quit your job. You do not need to hand in your resignation in writing. Your action last Friday speaks for itself.
We wish you luck in finding a new job.
15Similarly, the employer’s October 27 email states unequivocally that the applicant quit. The employer’s completion of the RoE and the use of the quit code also confirms that this is how the employer regarded the respondent’s departure.
16The conduct of the parties demonstrates what was set out in the exchanges referred to above, namely that the employment relationship ended on the applicant’s last day in the workplace, October 12, 2012.
17Contrary to the applicant’s assertion, eligibility for Employment Insurance maternity benefits depends on having accumulated sufficient hours of insurable earnings during the qualifying period leading up to the receipt of benefits. It does not depend upon being employed at the time the benefits are being received.
18I conclude that the respondent was not employed at the applicant’s workplace after October 12, 2012.
19In relation to the events after the date her employment ended, I conclude that any allegedly discriminatory conduct on the part of the respondent did not arise in the employment context. The applicant cannot show that those events occurred in any other social area covered by the Code. The Tribunal has no jurisdiction to deal with exchanges between two private parties unless they fall within one of the social areas covered by the Code.
20As a result I conclude that the Application was not filed in a timely manner.
21Regarding the applicant’s explanation for the delay in filing, I determine that this does not constitute a good faith explanation that would justify allowing this Application to proceed.
22The applicant states that he did not want to start this Application while another Application in which his spouse was named as a respondent was pending. The applicant was not a party to that other proceeding
23The Tribunal has held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application (see: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670). Where, as in this case, the applicant is not even a party to the other legal proceeding, there is even less reason to excuse the delay.
24Having 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
25The Application is dismissed for delay.
Dated at Toronto, this 27th day of October, 2014.
“Signed by”
Paul Aterman
Vice-chair