HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tejesh Khatri
Applicant
-and-
Kraft Foods Canada, BCTGM Union Local 426, Irene Rosenfeld, James Vacheff, Karl Walker, and Tracy Henry
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Khatri v. Kraft Foods Canada
WRITTEN SUBMISSIONS
Tejesh Khatri, Applicant
Pravin Chandra Teliawala, Representative
Introduction
1The applicant filed his Application with the Tribunal more than 10 months outside the one-year time limit in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Decision is to decide whether the Application should be dismissed because it is outside the Tribunal’s jurisdiction.
2The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:
- (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.
3I have decided to dismiss the Application because the applicant has failed to satisfy me that his delay in filing his Application was incurred in good faith. The following are my reasons.
BACKGROUND
4The applicant was employed by Kraft Foods Canada (the “employer”) and a member of BCTGM Union Local 426 (the “union”). On September 27, 2011, the employer terminated the applicant’s employment.
5The union filed four grievances on the applicant’s behalf, which were referred to arbitration. On June 14, 2012, the hearing took place, but the applicant failed to appear. On July 16, 2012, the arbitrator issued an Award, which dismissed the grievances because the applicant had failed to provide a justification or satisfactory explanation for his failure to attend the hearing.
6On August 20, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that the respondents had subjected him to discrimination and reprisals. However, he failed to fill out section 7(c) and (d) of the Application (“What was the date of the last event?” and “If you are applying more than one year from the last event, please explain why:”).
7On October 1, 2013, the Tribunal issued a Notice of Incomplete Application to the applicant, which directed him to complete section 7(c) and (d).
8On October 4, 2013, the applicant filed the completed section 7(c) and (d) with the Tribunal. In section 7(c), he stated that he was fired on September 27, 2011, and in section 7(d), he stated that the matter went to arbitration, and he wrote letters to his employer and union to resolve his human rights issue.
9On November 5, 2013, the Tribunal’s issued the applicant a Notice of Intent to Dismiss, which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination, and he did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. The Tribunal directed the applicant to provide written submissions in response to this issue.
10On January 7, 2014, the applicant filed written submissions, which stated that his delay in filing his Application was in good faith within the meaning of common sense people. Specifically, he stated that he contacted the Tribunal a “long time ago” and asked for a claim number, but the Tribunal never gave him a claim number, and instructed him that before he proceeds with his Application he has to exhaust all his efforts. The remainder of the applicant’s submissions contain criticisms of the Tribunal which are unrelated to the issue at hand.
ANALYSIS
11I find that the applicant filed his Application with the Tribunal outside the one-year time limit in s. 34(1) of the Code. The last alleged incident of discrimination occurred on September 27, 2011, but the Application was not filed until August 20, 2013, which means that it was filed more than 10 months outside the one-year statutory time limit of September 27, 2012.
12Pursuant to subsections 34(1) and (2) of the Code, the Tribunal must dismiss an untimely application on basis of jurisdiction unless it is satisfied that the delay in filing the application was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The main issue to address is whether the applicant’s delay in filing his Application was incurred in good faith.
13In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:
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….
See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.
14I find for the following reasons that there is no air of reality to the applicant’s explanation that his delay in filing his Application was incurred in good faith because the Tribunal instructed him a “long time ago” that before he could proceed with his Application he had to exhaust all his efforts to resolve his human rights issues elsewhere.
15First, the applicant’s explanation is extremely vague; he does not identify who at the Tribunal gave him such an instruction and when he received such an instruction.
16Second, the Tribunal’s practice is not to provide legal advice to parties; applicants who request legal advice are given information about independent organizations that provide legal advice, such as the Human Rights Legal Support Centre. See, for example, the Tribunal’s Applicant’s Guide to Filing an Application with the HRTO and Information on the Process for Resolving Human Rights Applications before the Human Rights Tribunal of Ontario, both of which are publicly available on the Tribunal’s website.
17Third, such an instruction would have been contrary to the Tribunal’s jurisprudence. The Tribunal has consistently held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See, for example, Cartier v. Northeast Mental Health Centre, above, at para. 23.
18Fourth, the grievance/arbitration proceeding was completed on July 16, 2012. At that point, the applicant still had more than more than two months to file his Application in a timely manner, but failed to do so. Instead, he waited more than 13 months to file his Application. In view of the fact that the grievance/arbitration proceeding was completed before the one-year time limit in the Code had expired, his explanation that he was exhausting all his efforts to resolve his human rights issues elsewhere before filing his Application does not even make sense.
19In the circumstances, I am therefore not satisfied that the applicant’s 10-month delay in filing his Application was incurred in good faith because he has not provided a reasonable explanation for the delay.
20In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.
ORDER
21The Application is dismissed.
Dated at Toronto, this 13th day of March, 2014.
“Signed by”
Ken Bhattacharjee
Vice-chair```