Sterling v. Wendy’s Restaurant of Canada Inc., 2014 HRTO 686

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Sterling Applicant

-and-

Wendy’s Restaurant of Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: May 13, 2014 Citation: 2014 HRTO 686 Indexed as: Sterling v. Wendy’s Restaurant of Canada Inc.

WRITTEN SUBMISSIONS

Louis Sterling, Applicant Self-represented

Wendy’s Restaurant of Canada Inc., Respondent Joyce Travaglini, Representative

1This is an Application filed on December 17, 2013 under section 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, place of origin, ethnic origin, family status, marital status, age, record of offences and reprisal.

Background

2The applicant identifies himself as a black man from Jamaica, having moved to Canada when he was 10 years old. The applicant states in his Application that he worked in the organizational respondent’s restaurants for 14 years, including 7 as a General Manager. The applicant filed an application, Tribunal file number 2010-05734-I, regarding the cessation of his employment, which he withdrew following a settlement with the organizational respondent. The applicant states that the owner-operators of a Wendy’s restaurant tentatively offered him a position as a General Manager on December 12, 2012, but rescinded the offer on December 14, 2012 because the organizational respondent “coded” the applicant as someone who could not be rehired. The applicant alleges that the refusal to rehire him was discriminatory. The respondents took the position that the Application was barred by a Full and Final Release executed by the applicant. On February 24, 2014, the respondents also filed a Request for an Order During Proceeding in which they requested that the Tribunal dismiss the Application because it was filed after the expiry of the one-year limitation period set out in section 34(1) of the Code.

3In a Case Assessment Direction dated March 10, 2014, The Tribunal noted that the Application pertains to allegations that arise after the release was signed by the applicant. The Tribunal also directed the parties to make submissions on the issue of delay because it appeared that the applicant may have filed the Application more than one year after the last incident of alleged discrimination. In particular, the Tribunal directed the applicant to make submissions regarding which date should be accepted as the last alleged incident of discrimination and to provide a good faith explanation for his delay should the Tribunal find the Application to be untimely.

4In his submissions, the applicant submitted that the Tribunal processed his Application on December 17, 2013, but he sent the Application by “express mail” on December 12, 2013 with signature upon receipt. The applicant, however, did not include receipts or any other evidence that would establish the truth of this statement. Consequently, the Tribunal issued a second Case Assessment Direction, dated April 11, 2014, in which it directed the applicant to file any documents in his possession that would establish the delivery service selected by the applicant to send the Application to the Tribunal, when he sent the Application to the Tribunal, and when it was delivered and also invited the parties to make submissions about these documents.

Submissions

5The applicant submitted a Customer Receipt from Canada Post and a Canada Post Tracking History that indicate that the applicant sent the Application to the Tribunal by Xpresspost on Friday, December 13, 2013 and that it was delivered and signed for on Monday, December 16, 2013. The applicant submitted that, in any event, the final act of discrimination occurred on December 17, 2012, when he received his Record of Employment from a Wendy’s restaurant.

6The respondents submitted that, while the evidence indicates the Tribunal received the Application on December 16, 2013, the Tribunal did not stamp it as “filed” until December 17, 2013. The respondents submitted that the last alleged incident of discrimination occurred on December 14, 2012; therefore, the Application is untimely and the applicant provided no good faith explanation for the delay in filing the Application.

Analysis and Decision

7Section 34(1) of the Code requires that an application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(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.

8In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation regarding why he or she did not pursue his or her Code rights in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

9The Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, at section 88(2) specifies that Sunday and Family Day are “holidays”. Further, it includes subsections 89(1)-(5) pertaining to the calculation of time. Those subsections state:

89(1) Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday.

(2) Time limits for registering or filing documents or for doing anything else that expire on a day when the place for doing so is not open during its regular hours of business are extended to include the next day the place is open during its regular hours of business

(3) A reference to number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days.

(4) A period of time described as beginning or ending on, at or with a specified day includes that day.

(5) A period of time described as beginning before or after a specified day excludes that day.

10The Tribunal’s Rules provides:

1.4 In these Rules,

“holiday” means any Saturday, Sunday, or other day on which the Tribunal’s offices are closed.

1.09 Where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.

1.10 When the time for doing an act expires on a holiday, the act may be done on the next day that it not a holiday.

1.22 Where a document is delivered by a party or sent by the Tribunal, receipt is deemed to have occurred when delivered or sent:

a) by mail, on the fifth day after the postmark was due;

c) by courier, on the second day after it was given to the courier…

11In my view, the last alleged incident of discrimination was the rescission of the offer to hire the applicant, which occurred on December 14, 2012. The delivery of a Record of Employment is not in itself discriminatory and the applicant has provided no basis for concluding that the delivery of this document could amount to a breach of the Code. Accordingly, the limitation period for filing the Application ended on Saturday, December 14, 2013. The Tribunal is not open on Saturdays; therefore, pursuant to section 89(2) of the Legislation Act, 2006 and the Tribunal’s Rules of Procedure, the last day for filing the Application within the one-year time limit was Monday, December 16, 2013. There is no dispute that the Application was delivered on December 16, 2013, but not stamped as filed by the Tribunal until the next day, December 17, 2013.

12The facts of this case are very similar to those in Ward-Taylor v. Instachange Displays Limited, 2012 HRTO 1282. In that case, the one-year time limit also fell on a Saturday; therefore, the time limit was extended to the next day on which the Tribunal was open (in that case the Tuesday after a long weekend). The applicant also sent her application by Xpresspost, and it was delivered on the last day for filing within the on-year limit, but not stamped as filed until the following day. The Tribunal found that, in these circumstances, the application had been delivered to the Tribunal on the last day of the limitation period and was therefore timely. In the alternative, the Tribunal accepted that any delay in filing the Application was incurred in good faith given that the applicant sent her Application, by Xpresspost, prior to the deadline.

13I agree with the reasoning in the Ward-Taylor decision and adopt it here. Accordingly, I find that the applicant filed the Application within the one-year limitation period, i.e., that it was filed in a timely manner.

Removal of Individual Respondents

14On February 4, 2014, the respondents filed a Request for an Order During Proceedings in which they seek removal of the individual respondents. The applicant did not file a Response to this Request and the time for doing so has passed.

15Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In in Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed, as follows, at paragraph 5:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

16The respondents submitted the criteria for removal of an individual respondent set out in Persaud, supra, are met in this case. The respondents submitted that Wendy’s is a corporate respondent and is alleged to be liable for the same conduct as the individual respondents. The respondents submitted that Wendy’s accepts vicarious liability for the conduct of the individual respondents, who, they submitted, were acting within the scope of their employment duties at all times. The respondents submitted that Wendy’s can respond to or remedy any infringement of the Code that the Tribunal may find. The respondents submitted that it is unnecessary to include the individual respondents in the Application. Finally, the respondents submitted that removal of the individual respondents will not prejudice the applicant because he will be able to proceed to a hearing on the merits and will be able to access the individual respondents as witnesses, if necessary.

17I find it unnecessary to address all of the factors set out in Persaud, supra. There is a corporate respondent, Wendy’s, that accepts vicarious liability and its ability to meet any remedy has not been challenged. The Application does not contain any specific allegations against any of the individual respondents and the applicant’s submissions on various preliminary issues contain only bare assertions of discriminatory attitudes and behaviour regarding some of the individual respondents. Accordingly, there is no compelling reason to continue to include the individual respondents in the Application and there is no indication that the applicant will suffer prejudice if they are removed. In these circumstances, the Tribunal shall remove the individual respondents and amend the style of cause accordingly.

Abuse of Process

18In their submissions in response to the Case Assessment Direction of April 11, 2014 regarding delay, the respondents also included submissions in which they requested dismissal of the Application because it is an abuse of process. Adding a request to submissions on a different issue is not uncommon, but it is an unhelpful practice in which parties should not engage. Such requests cause confusion because the other parties, particularly unrepresented parties, are often unaware or unsure if they may respond to such requests and do not know what the time limit is for responding. In these circumstances, the Tribunal must give directions that would be unnecessary if the parties simply filed a separate Request for an Order During Proceedings, pursuant to the Tribunal’s Rules of Procedure.

19I find, however, that it is not necessary to direct the applicant to respond to this request because the Application does not in my view amount to an abuse of process, at this point. The respondents submitted that the applicant referred to the respondents in inappropriate and insulting terms throughout his various submissions to the Tribunal made unfound accusations about the individual respondents. The respondents submitted that the applicant continues to refer to his experiences when he was employed by the organizational respondent, which was the subject of a previous application to the Tribunal that was withdrawn. The respondents also submitted that the applicant filed a claim under the Employment Standards Act, 2000 (the “ESA”) regarding severance and termination pay. The respondents submitted that the applicant may not be satisfied with the outcome of his previous application to the Tribunal and has therefore commenced an offensive and abusive Application.

20This Application deals with the issue of the organizational respondent’s alleged refusal to rehire the applicant or to allow store owners to rehire the applicant. Amongst other allegations, the applicant alleges that this refusal amounted to a reprisal under section 8 of the Code for pursuing a previous application to the Tribunal. Accordingly, some reference to the applicant’s previous employment and previous application is to be expected. In any event, the issues arising in this Application are separate and distinct from his previous application. Consequently, it does not appear that the applicant is attempting to re-litigate his withdrawn allegations. Similarly, there is no indication that the applicant’s claim under the ESA dealt with the same issues as this Application.

21I agree with the respondents that the applicant has used inappropriate language to describe them. Rule A7 of the Social Justice Tribunals Ontario Common Rules states as follows:

All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

22Accordingly, parties and representatives before the Tribunal are entitled to be treated with courtesy and respect in Tribunal proceedings, by the Tribunal and by other parties and representatives. An application is not an opportunity for parties to make personal insults or attacks. The Tribunal set out its expectations regarding parties’ conduct in In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913, the Tribunal at paragraphs 8 and 9:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

23The applicant has at times used language to describe the respondents that do not respect these requirements. In my view, dismissal of the Application is not yet warranted, but the applicant is warned that continuation of such conduct may lead to further steps being taken by the Tribunal.

Order

24The Tribunal orders as follows:

1. The respondent’s request to dismiss the Application as untimely is denied;
2. The individual respondents are removed from the Application and the style of cause shall be amended accordingly; and,
3. The respondent’s request to dismiss the Application as an abuse of process is denied.