Oabel v. General Paint Corporation, 2014 HRTO 275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Manuel Oabel

Applicant

-and-

General Paint Corporation, Dick Glassford, Horst Kreissler and Bill Tough

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: March 3, 2014

Citation: 2014 HRTO 275

Indexed as: Oabel v. General Paint Corporation

APPEARANCES

Manuel Oabel, Applicant Self-represented

General Paint Corporation, Dick Glassford, and Horst Kreissler, Respondents Patrick Gannon, Counsel

Bill Tough, Respondent Robert Healey, Counsel

1This is an Application filed on September 6, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, ethnic origin and disability.

2The applicant identifies himself as a man from the Philippines and states that he suffers from Chronic Pain Disorder and Adjustment Disorder with Mixed Anxiety and Depressed Mood resulting from workplace stress. The applicant is an employee of the respondent General Paint Corporation (“General Paint”). The applicant states in his Application that he experienced discrimination and harassment related to accommodations he required after injuring his back in a motor vehicle accident and because he was the only visible minority who operated a forklift. The applicant states that he complained of the harassment and differential treatment he allegedly received from management personnel, but no action was taken. The applicant states that the individual respondent Bill Tough confronted him after he returned to work from a medical leave in April 2011 regarding his workplace accommodation. The applicant states that on April 19, 2011 respondent Tough alleged that the applicant threatened him and the applicant was suspended without pay. The applicant states that he applied for short term disability benefits on May 21, 2011 through his insurance carrier. The applicant then described his correspondence with the insurance carrier and General Paint related to his leave of absence.

3Mr. Tough filed his Response on October 16, 2012 and denies the allegations of harassment and discrimination. Mr. Tough also requested that the Tribunal dismiss the Application as against him for delay because his last contact with the applicant was on April 19, 2011, approximately 1 year and 5 months before the applicant filed the Application.

4General Paint and individual respondents Glassford and Kreissler filed their Response on October 18, 2012. These respondents request removal of the individual respondents from the Application because they were acting within the scope of their management duties in their dealings with the applicant. They also request dismissal of the Application, in whole or part, because of delay.

5After receiving written submissions on these issues from the parties, the Tribunal issued a Case Assessment Direction, dated May 27, 2013, directing a half-day conference call preliminary hearing to be scheduled to deal with the issues of delay and whether some or all of the individual respondents should be removed from the Application. The preliminary hearing was held by conference call on December 9, 2013.

Analysis and Decision

6Section 34(1) and (2) state as follows:

(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.

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 he or she had no reason to make inquiries about his or her rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548 at paragraphs 12 and 14.

9During the preliminary hearing, the applicant confirmed that the last incident of discrimination occurred on April 19, 2011 when Mr. Tough confronted him, which is more than one year before the applicant filed the Application. The applicant explained that he delayed in filing the Application because he had asked his trade union to assist him and was waiting for the union to take action. The applicant also explained that he had been unaware of the limitation period in the Code, but stated that he filed the Application when he realized that the union was not making progress in addressing his concerns.

10The applicant clearly believed the respondents were violating his Code rights, which, in my view, means that he had every reason to make inquiries about his rights. While it is understandable that he would seek the assistance of his union, it was not reasonable for him to wait for over one year to see what the union might accomplish before taking action on his own behalf to enforce his rights. As noted above, waiting for the outcome of another process will generally not amount to a good faith explanation.

11I find that the applicant has not provided a good faith explanation for his delay in filing the Application. In these circumstances, there is no need to address the issue of prejudice or whether the individual respondents should be removed from the Application.

ORDER

12The Application is dismissed for delay.