Alagathurai Sivaskaran v. Jeld-Wen of Canada Ltd., 2014 HRTO 174

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alagathurai Sivaskaran

Applicant

-and-

Jeld-Wen of Canada Ltd.

Respondent

DECISION

Adjudicator: Paul Aterman

Date: February 5, 2014

Citation: 2014 HRTO 174

Indexed as: Sivaskaran v. Jeld-Wen of Canada Ltd.

WRITTEN SUBMISSIONS

Alagathurai Sivaskaran, Applicant

Self-represented

1This Application alleges discrimination with respect to employment because of place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It was filed on August 8, 2013.

2The applicant worked for the respondent. He alleges that he was terminated because he comes from a part of Sri Lanka which is different from the area of Sri Lanka that his former supervisor comes from. He was dismissed from his employment on August 24, 2011.

3On December 3, 2013 the Tribunal sent the applicant a Notice of Intent to Dismiss on the grounds that the Application was filed more than a year after the last incident of alleged discrimination. The applicant was directed to provide written submissions as to why the Application should not be dismissed for delay.

4The applicant’s submission on this issue reads as follows:

It has been mentioned on your letter that my application was not filed on time. I disagree with it because my application was submitted along with similar application for my sister Mrs. Vijaythuvi Alagathurai, (File# 2011-10-167-1) on 11/09/11 and it was dealt by you accordingly .Therefore, my application was submitted not lately but on time.

5The Application in Tribunal file 2011-10167-I was indeed filed by Vijayathevi Alagathurai in October of 2011 and was dealt with by the Tribunal. That file involves entirely different parties, different issues and different allegations from the ones raised by the current Application. It makes no mention of the applicant. Apart from the assertion made by the applicant above, there is nothing to indicate that the applicant filed his Application in 2011.

6In fact, his assertion above is contradicted by the information he provided in the Application itself. There he states that he filed his Application more than a year after the last event because he went to an advocacy organisation called the Workers’ Action Centre for help and that organisation failed to help him. He attended classes at the Workers’ Action Centre, but it did nothing to assist him with his Application. He states that he then filed an application with the Ministry of Labour in error in September 2012, as he should have filed an Application with the Tribunal.

7Section 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.

8In this case the Application was filed on August 8, 2013, well after the one year time limit for filing, which expired on August 23, 2012, one year after the last alleged incident of discrimination on August 24, 2011.

9I reject the applicant’s argument that he filed his Application on time, as he has provided no evidence at all to support his assertion that he filed the Application in September or October of 2011.

10The Tribunal may extend the time to file an Application if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

11I will assume that the explanation originally provided by the applicant in his Application is his account of why he acted in good faith. In his explanation the applicant indicates that when he went to the Workers’ Action Centre he “…attended the classes and wasted the time unnecessarily. They did not help me in filling out the forms. One year had elapsed in attending classes.” At best, the rest of his account is an explanation that he did not know where to file his Application or whom else he could turn to for help.

12By the applicant’s own account he felt that his human rights had been infringed and that he wanted to seek redress. That is why he went to the Workers’ Action Centre. While he may have felt that this organisation was unhelpful to him, it was nonetheless his obligation to find the kind of assistance he needed to file an Application in a timely manner. His description of wasting a year taking classes indicates that it was within his power to seek assistance and file his Application on time, but that instead he decided not to act. In my view the reasons he has put forward in relation to the failure to obtain help from the Workers’ Action Centre do not amount to an explanation that he acted in good faith.

13Although it is not clear, the Application also appears to indicate that the applicant applied to the Ministry of Labour for termination pay pursuant to the Employment Standards Act, 2000, S.O. 2000, c.41 (“the ESA”). If this is what he means when he states that he applied to the Ministry of Labour in error, I am not satisfied that this amounts to a good faith explanation for the delay in filing this Application.

14The Tribunal has held that choosing to pursue other proceedings before initiating an Application is generally not sufficient to justify a delay under the good faith exception (see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670).

15In my view this reasoning applies here. The applicant has not explained what stopped him from filing an Application within time while simultaneously pursuing a remedy under the ESA.

16The applicant has not advanced any other explanations that might bring his delay in filing within the good faith exception. As a result I find that he has not shown that the delay was 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.