Ahmed v. Ontario (Transportation), 2014 HRTO 1820

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Masud Ahmed

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Transportation

Respondent

DECISION

Adjudicator: Brian Cook

Date: December 23, 2014

Citation: 2014 HRTO 1820

Indexed as: Ahmed v. Ontario (Transportation)

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision considers whether the Tribunal has jurisdiction to deal with the Application because it was filed more than one year after the alleged discrimination occurred.

2The Application was filed on October 28, 2014. It alleges discrimination in regard to a job competition. The applicant was interviewed on October 7, 2013 and was told that he was not a successful candidate sometime after that. He filed a grievance on October 10, 2013 which was denied by his employer.

3Section 34 of the Code provides:

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.

4Because the Application was not filed within one year of the alleged discrimination, on December 11, 2014, the Tribunal issued a Notice of Intent to Dismiss, inviting the applicant to make submissions about the delay issue.

5The applicant filed submissions on December 18, 2014. The applicant submits that there is a good faith explanation for the delay. He says that he initially pursued his allegations of discrimination through the union grievance process. His grievance was considered by the Grievance Settlement Board in July and August 2014 and a decision was issued on August 26, 2014. The Board determined that it did not have jurisdiction to deal with the grievance because the job that the applicant was seeking in the job competition was in a different bargaining unit than the bargaining unit represented by his union.

6The applicant then filed a complaint about the job competition process with the Office of the Integrity Commissioner of the Legislature of Ontario. The Commissioner concluded that she did not have jurisdiction to deal with the complaint either. It is not clear when that complaint was filed, but the Commissioner’s Decision is dated October 27, 2014. The Commissioner advised the applicant that his complaint might be more properly dealt with by this Tribunal. The applicant filed the Application the next day. The Application has not been delivered to the respondent.

7The 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.

8The 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 54 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.

9In this case, I accept that the applicant attempted to pursue his Code-related allegations in other forums. However, I cannot conclude that this provides a good faith explanation for the delay under section 34(2) of the Code. The Application is dismissed on that basis.