Legace v. CS Wind Canada Inc., 2014 HRTO 1703

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Legace

Applicant

-and-

CS Wind Canada Inc.

Respondent

DECISION

Adjudicator: David Muir Date: November 25, 2014 Citation: 2014 HRTO 1703 Indexed as: Legace v. CS Wind Canada Inc.

Introduction

1This is an Application filed on July 22, 2014, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age, disability, gender identity and reprisal.

2In its Response (Form 2), the respondent argued that the Application should be dismissed due to delay it being filed more than one year after the last possible incident of discrimination.

3On October 22, 2014, the Response was delivered to the applicant and he was directed to respond by filing a Reply addressing the delay issue. The applicant was also advised that if he did not file written submissions by the required date, the Tribunal would make its decision based only on the information in the Application and the Response, or may consider the failure to file a Reply in these circumstances as an abandonment of the Application and dismiss the Application for that reason. Although the applicant requested and was granted an extension of time to file a Reply, he has not done so and the time for doing so has passed.

Decision

4In my view the Application should be dismissed as abandoned.

5I also find that the Application should be dismissed because it was filed beyond the one-year time limit prescribed in section 34 of the Code.

6As indicated above this Application was filed on July 22, 2014; the last incident of discrimination is said to have occurred on July 11, 2013, when the applicant’s employment with the respondent concluded.

7Sections 34(1) and (2) of the Code provide:

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.

8This Application is out of time. Although the Application is only a few days out of time, it remains that the applicant must meet the requirements of section 34(2) or provide a good faith explanation for the delay and establish that there will be no substantial prejudice to any party. (See Farwell v. Northumberland Services for Women, 2010 HRTO 1126).

9The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The Tribunal has interpreted these provisions of the Code as requiring that 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. The provision has been found to be mandatory subject to section 34(2). The 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. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241)

10In this case the applicant has provided no explanation for the delay. I am not able to infer a good faith defence from the applicant’s silence and accordingly the Application must be dismissed.

11For all of these reasons the Application is dismissed. Having found that there is no good faith explanation for the delay in filing the Application I need not consider whether any party might have been prejudiced by such delay.