Courchesne v. Farquhar Cabinets Inc., 2014 HRTO 19

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bram Courchesne

Applicant

-and-

Farquhar Cabinets Inc.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: January 7, 2014

Citation: 2014 HRTO 19

Indexed as: Courchesne v. Farquhar Cabinets Inc.

WRITTEN SUBMISSIONS

Bram Courchesne, Applicant

Trueman Tuck, Representative

Introduction

1The applicant filed an Application on October 11, 2013, alleging discrimination in employment on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application contains allegations relating to events that took place after he sought to return to work at the respondent company in 2011.

2On November 21, 2013, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) for delay. The applicant filed submissions in response to the Notice on December 23, 2013.

decision and analysis

3Section 34 of the Code states in part:

(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.

4As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

5The applicant takes the position that the last incident of discrimination occurred on March 14, 2013, when his employer sent him a Record of Employment (“ROE”) in response to a request made by the applicant’s representative for this document on March 7, 2013. In order to determine whether this was, in fact, a fresh incident of alleged discrimination, it is helpful to understand the nature of the applicant’s Application.

6The applicant was employed with the respondent when he was injured in a car accident in July 2010. The applicant alleges that he was able to return to work on a “modified work plan” in early January 2011, but that his occupational therapist was not able to successfully make contact with the respondent at that time. He alleges that on March 23, 2011, after he was able to resume his full duties, his occupational therapist was able to speak with the respondent, at which time he was advised that the applicant’s position was “full” but that the respondent would see if he could “hire” the applicant back. It is not clear who, but someone on behalf of the applicant allegedly phoned the respondent’s president on March 30, 2011, but did not hear back from the respondent. The applicant did not make any further effort to communicate with the respondent until he sought his ROE two years later.

7The applicant describes his efforts to seek legal advice and obtain alternate work in his Application. He obtained some kind of work in late September 2011 and a full-time position in January 2012. In September 2011, he alleges he contacted a lawyer about instituting a wrongful dismissal suit, but was not told about the option of filing a human rights application at that time. He then contacted his current representative, a paralegal, in January 2013. For reasons that are not entirely clear, his representative was not able to pursue anything on his behalf right away, but did request the ROE in early March, 2013.

8The most recent alleged incident of discrimination is the employer’s refusal to take the applicant back to work in March 2011. When the applicant did not hear back from the employer, it is clear that he considered the employment relationship ended. He sought other work, did not communicate with the respondent’s president (who is his next-door neighbour) and sought legal advice about commencing a wrongful dismissal suit in September of that year.

9The applicant’s submissions assert that the respondent’s delay in sending the applicant’s ROEs (the first related to his medical leave, the second related to his alleged termination) is contrary to Employment Insurance Regulation, SOR/96-332, and that the respondent was in contravention of the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”) by failing to issue a notice of termination. This Tribunal, however, does not have jurisdiction to determine whether these legislative provisions were infringed. Moreover, they cannot be seen as incidents of discrimination contrary to the Code.

10Given that the Application was filed in excess of two years after the last incident of alleged discrimination, it is incumbent on the applicant to provide a “reasonable explanation” for the delay. The applicant asserts that he was unaware of his rights under the Code and was not advised of them when he consulted a lawyer in 2011, although he was advised he could commence a wrongful dismissal suit (which he appears not to have done). He further submits that his job, which he started in 2012, was far away and he was recovering from unidentified “emotional and mental disabilities” which made him unable to address his “financial crisis.”

11In any event, the applicant submits he was ready to pursue legal avenues in 2012 and to that end sought a legal referral. He retained his current representative in January 2013, at which time he was advised of his Code rights. There is no explanation for why an application was not commenced at that time, but rather the first step was to obtain an ROE. More importantly, there is no explanation for why the applicant did not file his Application after he received his ROE until an additional seven months had elapsed. During this period, he appears to have filed an ESA claim. In the absence of any explanation for these gaps of time, I cannot conclude that the delay was incurred in good faith.

12The Tribunal is without the jurisdiction to deal with this Application given the delay and the absence of good faith. It is not, therefore, necessary to address the issue of prejudice.

13The Application is dismissed.