Banfille v. BASF Canada Inc., 2014 HRTO 216

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Banfille

Applicant

-and-

BASF Canada Inc., Dean Clevett, G4S Secure Solutions (Canada) Limited and Robert Mailloux

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: February 14, 2014

Citation: 2014 HRTO 216

Indexed as: Banfille v. BASF Canada Inc.

WRITTEN SUBMISSIONS

Christopher Banfille, Applicant

Self-represented

BASF Canada Inc, Dean Clevett, G4S Secure Solutions (Canada) Limited and Robert Mailloux, Respondents

No submissions

Introduction

1This Application alleges discrimination with respect to employment because of association with a person identified by a protected ground and alleges reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application was filed on November 6, 2013 and indicates that the date of the last event was July 20, 2011.

3On November 29, 2013, the Tribunal sent a Notice of Intent to Dismiss (NOID) to the applicant, advising that upon review, it appears that the Application is outside the Tribunal's jurisdiction because the Application was filed more than one year after the last incident of discrimination described in the Application and the applicant did not appear to have cited facts that constitute "good faith" within the meaning of the Tribunal's case law. It directed the applicant to provide written submissions on or before January 13, 2014.

4The applicant made written submissions to the Tribunal on January 9, 2014.

DECISION

5Having considered the applicant's submissions, I find that this Application is outside the Tribunal's jurisdiction, as it was filed more than one year after the last alleged incident of discrimination and the applicant has not shown that the delay was incurred in good faith within the meaning of the Tribunal's case law.

BACKGROUND FACTS

6The applicant has been employed by a security company as a site supervisor at BASF since January 2003. He alleges that he was thought of highly by his employer, was given training responsibilities, and among other things he wrote documents, presentations and tests which were used at the worksite. In April 2006, Dean Clevett, a manager at the client BASF, spoke to him about a security employee (the "unwanted employee") who Dean Clevett did not want to continue to employ at the site. The applicant alleges that the unwanted employee was born in or around 1948 and has a speech impediment. The applicant alleges that often "people assume that he [the unwanted employee] is much older and not very intelligent", but that he found the unwanted employee to be a good worker.

7The applicant alleges that Dean Clevett began to treat him and the unwanted employee differentially, engaging in "grudge-based decision making" and making unfair or unfounded complaints about them, and giving his performance a poor rating. He alleges that the Dean Clevett advised his employer that he had given all of the security guards a bad rating, as the security company had retained the unwanted employee, and this left him with a poor impression of the company.

8The applicant alleges that Dean Clevett called him into his office and stated that the unwanted employee "has to go because 'he's not the brightest bulb in the box'" and he suggested that the unwanted employee is too old to continue working and should be forced to retire. The applicant alleges that he stated that the unwanted employee is not as old as Dean Clevett likely thought, and that the applicant told Dean Clevett that there is no mandatory retirement and referred him to his supervisors at the security company. The applicant does not provide a date in respect of this allegation, but it appears to date somewhere between April 2006 and April 2007.

9The applicant alleges that in June, 2007, Dean Clevett continued to demand that the unwanted employee be removed from the site, but that instead the security company made an arrangement with Dean Clevett which would require the unwanted employee to work midnights only. He alleges that before the next monthly meeting, he told his supervisor at the security company that there were human rights issues to be considered in this arrangement. He alleges that the supervisor advised him that the company would research the question.

10The applicant further alleges that at a monthly meeting in December 2008, Dean Clevett again demanded that the unwanted employee be removed and stated that he is too old and should be forced to retire. The applicant alleges that his supervisor at the security company refused and told Dean Clevett that the client would be forced to pay a severance package to the unwanted employee should his employment be severed. The applicant alleges that after the meeting, Dean Clevett suggested that he convince the unwanted employee to retire and that he refused. He states that it is his contention that when another security company, the respondent G4S Secure Solutions (Canada) Limited ("the respondent security company"), took over the security contract for the site, Dean Clevett took advantage of the change and retaliated against him for not agreeing to violate the unwanted employee's human rights.

11The applicant asserts that the respondent security company obtained the contract for the site he was at, effective April 16, 2011. He alleges that he met with an individual from human resources from the respondent security company in advance of April 16, 2011 and that she did not indicate that the client had complained or asked for any change in personnel.

12The applicant alleges that his district manager at the new security company, Robert Mailloux, advised him that he could arrange to include the applicant in hiring interviews, but that in May 2011, a new employee was hired without the applicant having been given the opportunity to participate in the hiring interview. He alleges that the "official story" was that the new employee was being hired as a security guard to work as needed to replace people who were sick or on vacation and that in the meantime, the applicant was to assign the new employee to part time hours.

13The applicant alleges that in June 2011, the unwanted employee was moved to a different site, at the request of Dean Clevett. He states that he "suspected at the time" that it was because the unwanted employee had successfully renewed his licence to work as a security guard. He alleges that he had also been instructed to give the new employee the unwanted employee's hours on the schedule. He alleges that shortly thereafter, the unwanted employee came to collect his personal belongings from the worksite and the applicant told him about Dean Clevett's comments and suggested that he file a human rights complaint, offering to "testify for him and back him up one hundred percent". He alleges that he also told Robert Mailloux that what had happened to the unwanted employee was a human rights violation.

14The applicant alleges that on July 12, 2011, Robert Mailloux advised him that Dean Clevett wanted a new supervisor for the site and that the new employee would become the new supervisor, effective July 20, 2011. He alleges that Robert Mailloux advised him that Dean Clevett liked the applicant's work and wanted him to stay on at the worksite. The applicant alleges that in the circumstances, he asked Robert Mailloux for a transfer to a different site and assurances that his wage would not be affected. He alleges that over the next two months, he met with Robert Mailloux to discuss a "new deal". He also alleges that in one of these meetings, he wanted to know where his new job would be and what his wage would be. The applicant also alleges that he told Robert Mailloux he had done nothing wrong to make Dean Clevett want a new supervisor, and that the applicant said that "this may be a human rights violation because I am in my forties". He alleges that he told Robert Mailloux that Dean Clevett had claimed that the unwanted employee was too old and that he told Robert Mailloux that Dean Clevett "is attacking us one by one". He asserts that had "another" been removed, he would have "filed a complaint on these grounds at least".

15The applicant alleges that he suffered a wage reduction in August 2011 and that he continued to seek a transfer. He alleges that on August 20, 2011, he sent an email to Robert Mailloux about his demotion and wage reduction, stating, among other things:

If I get no answer I will presume it is another part of Dean's pattern of behaviour of giving people under 30 a free ride in violation of the Human Rights Code. You didn't know that another guy under 30 who did the worst thing so far was hired in the plant, while Dean was suggesting to me that I should try to convince [the unwanted employee] to retire.

16The applicant alleges that he met with Robert Mailloux again in September, 2011, and that they discussed his demotion and reduction in wages. He alleges that he indicated that he had spoken with someone at the Ministry of Labour and that he reiterated for Robert Mailloux that Dean Clevett had wanted him to convince the unwanted employee to retire. He alleges that Robert Mailloux advised him that age was not the reason for Dean Clevett's request to change supervisors. The applicant alleges that in the absence of a return to a supervisory position and the reinstatement of his previous wage, he would resign, and that subsequently he received a raise but not a supervisory position.

17The applicant criticizes the new supervisor's competence and alleges that the new supervisor is not subject to the same scrutiny he received as a supervisor. He also alleges that in August 2013, the new supervisor advised him that he had initially applied for the applicant's supervisory position. The applicant alleges that up until that time, the new supervisor had been "pretending that he was hired as a guard" and that he had been promoted because he had once been a supervisor at a hospital. The applicant alleges that the decision to demote the applicant was made earlier, when the unwanted employee was still working on the site. He alleges that this is proof that Dean Clevett was retaliating against him for refusing to try to convince the unwanted employee to retire.

Delay

18In his written submissions regarding the issue of delay, the applicant submits that the Application should be allowed to proceed. Among other cases, he cites Wilson v. Employment Access Coalition for Persons with Disabilities 2013 HRTO 455 ("Wilson") and Iyirhiarov. Toronto Transit Commission 2010 HRTO 2017 ("Iyirhiarov").

19He submits that the delay in filing his Application was due to the fact that the respondent security company, with the complicity of Dean Clevett, "created the delay through fraudulent concealment". In essence, he submits that because the new employee was interviewed to replace him as supervisor, it was made to appear that the decision to demote him was not made until one or two months after the unwanted employee was dismissed. He asserts that Robert Mailloux "did fraudulently conceal the cause of action when he insisted that my demotion in July of 2011 was due to contemporaneous events and entirely unrelated to [the unwanted employee] at a time when [the unwanted employee] was no longer working on the site". He submits that when he learned that the new employee had been interviewed for his supervisory job at an earlier date "this discovery had me go from thinking that I had a cause of action for constructive dismissal alone to thinking that I also had a Human Rights case".

20He submits that his failure to "get the truth out of" Robert Mailloux was "not due to a lack of trying" and that he "told him on several occasions that there were concerns about human rights issues". He submits that he would not have been able to file his Application earlier because he would not have been able to provide the facts that form the substance of the allegations.

21In the alternative, he submits that "if fraudulent concealment or discoverability were not applicable", he has shown that the delay in filing his Application was incurred in "good faith", because he has attempted to investigate and pursue his rights. He submits that it is not clear that his Application is outside the Tribunal's jurisdiction and it should be allowed to proceed in the Tribunal's process.

22Section 34 of the Code provides as follows:

34(1) If a person believes that any of his or her rights under Part 1 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.

23The Tribunal will not deal with an application filed more than one year after the incident, or last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

24In addressing good faith within the meaning of section 34(2) of the Code, the Tribunal states as follows in Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241 at paras 24-25:

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 GRTI 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 inquiries about options for pursuing the alleged wrong.

25The applicant relies upon discoverability, saying that the respondents "fraudulently concealed" that the new employee was interviewed with a view to having him take over as supervisor some months before the announcement of the change was made. With respect to the principle of discoverability, the Tribunal has observed as follows in Klein v. Toronto Zionist Council 2009 HRTO 241 at paragraph 23:

What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

26In this case, the applicant appears to allege that it was not until he learned in August 2013 that the new employee had been interviewed to replace him at his job that he discovered that his rights under the Code had been violated.

27In my view, it is clear on the face of the Application that the applicant did not only come to believe in August 2013 that he had been subject to discrimination with respect to his employment. Rather, according to his Application, at least as early as July 12, 2011, when Robert Mailloux told him of his demotion, he talked to Robert Mailloux about the fact that he suspected that the decision was being taken for discriminatory reasons contrary to the Code. In his email of August 20, 2011, he again spoke of his suspicion that the demotion and wage reduction were part of a pattern of violating the Code. Further, in his meeting with Robert Mailloux in September 2011, when discussing his demotion and reduction in wages, he talked to Robert Mailloux about the fact that Dean Clevett had wanted him to convince the unwanted employee to retire. Though he also asserts that Robert Mailloux advised him that age was not the reason he was being replaced as a supervisor, it is clear that the applicant had formed the opinion that what was happening to him was in violation of the Code. In my view, the information the applicant received from the new employee about having been interviewed for the supervisory position, is not information that assisted him in discovering a potential case under the Code. Rather, it was evidence that in his view, supported his allegation of a violation of the Code.

28Further, though the applicant submits that the fact that he was attempting to investigate and pursue his rights in the period prior to the one year limitation period, the Tribunal has stated that efforts to pursue one's rights without filing an Application, do not, without more, justify a waiver of the one-year limitation period under section 34(2) (see for example Gagné v. Maximum Mining 2009 HRTO 689 and Darroch v. King (Township) 2010 HRTO 2268).

29In the circumstances, and in view of the allegations made on the face of the Application and considering the applicants submissions, I find that that the applicant has failed to establish the good faith necessary within the meaning of section 34(2) of the Code, in order for the Tribunal to proceed with the Application. Accordingly, the Application is dismissed.