Frances Hickmott v. YMCA of Western Ontario, 2014 HRTO 742

Human Rights Tribunal of Ontario

B E T W E E N:

Frances Hickmott

Applicant

-and-

YMCA of Western Ontario

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 23, 2014

Citation: 2014 HRTO 742

Indexed as: Hickmott v. YMCA of Western Ontario

WRITTEN SUBMISSIONS

Frances Hickmott, Applicant

Philip Morrissey, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Tribunal advised the applicant by letter dated March 24, 2014 that it appeared that the Application was outside the Tribunal's jurisdiction because it was untimely. The applicant provided written submissions on this issue.

3The Application alleges that the last incident of discrimination occurred on February 6, 2013 when her employment was terminated, and the Application was filed on February 20, 2014. The applicant does not dispute that the Application was not filed within the one year limitation period, however, states that she instructed her lawyer to bring the Application within that one-year period and that it was delays at his end that resulted in the Application being untimely.

4Sections 34(1) and (2) of the Code provide:

34(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.

5Where 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 (see for e.g., Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241). The Code requires a person to file 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, 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.

6In 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 justify exercising the discretion under section 34(2).

7The applicant advises that she first contacted a lawyer on February 8, 2013 and was aware of the one year limitation period. She initially delayed filing the Application for several reasons, which it is not necessary to go into. She had a meeting with the lawyer on an undisclosed date sometime after February 8, 2013. She then e-mailed the lawyer again on August 1, 2013 indicating she continued to struggle with whether to proceed with the Application.

8At the beginning of February 2014, within the one year limitation period, the applicant gave instructions to her lawyer to file the Application. It was not filed until two weeks past the one year limitation period. The lawyer received the instructions to file the Application during a one week trial, following which he immediately left on vacation. His office contacted him on vacation and he advised his office to file the Application immediately, although there was a delay in getting the applicant in to sign the Application.

9Where counsel is responsible for the delay in filing an Application, this may constitute a good faith explanation as set out in s. 34(2) of the Code: See Patterson v. Mississauga (City), 2012 HRTO 598.

10In this case, the applicant maintained contact with the lawyer throughout, was aware of the limitation period and gave instructions to the lawyer in a timely manner. However, due to circumstances beyond her control the Application was filed after the one year limitation period.

11In the circumstances, I am not satisfied it is plain and obvious that the delay in filing the Application outside the one year limitation period was not incurred in good faith. Accordingly, the Tribunal will continue to deal with the Application.

12This is not a final decision regarding the Tribunal's jurisdiction in respect of this Application. I am not seized of this matter.