McCall v. Toronto Beds & Bedrooms Inc., 2014 HRTO 753

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Kennedy McCall Applicant

-and-

Toronto Beds & Bedrooms Inc. o/a The Bedroom Shop Canada Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: May 27, 2014 Citation: 2014 HRTO 753 Indexed as: McCall v. Toronto Beds & Bedrooms Inc.

APPEARANCES

Paul McCall, Applicant Thomas Peacock, Representative

Toronto Beds & Bedrooms Inc., Respondent Kyle D. Burgis, Counsel

Introduction

1This Application arises from the applicant’s employment with the respondent and the end of that employment, which happened when the applicant resigned on March 8, 2012. The Application was filed on March 13, 2013.

2The applicant alleges that he was subject to discrimination on grounds protected by the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), during his employment. He alleges that he was forced to resign his employment because of alleged discrimination and harassment. He alleges continuing harassment subsequent to his resignation, in the form of a series of text messages between himself and the respondent, the last of which appears to have been sent on March 14, 2012.

3The hearing into this matter was scheduled for May 20 and 21, 2014. On May 15, 2014, the Tribunal issued a Case Assessment Direction (“CAD”) directing the parties to provide evidence and submissions at the commencement of the hearing on the timeliness of the Application. The CAD also indicated that prior to the hearing the adjudicator would invite the parties to participate in mediation-adjudication.

4On the first day of the hearing the parties appeared together with their key witnesses prepared to commence the hearing on the merits. The parties engaged in mediation-adjudication prior to the merits hearing; however, the parties were unable to resolve their dispute in that forum. Subsequently, I directed the parties to address the issue of timeliness as directed by the CAD. At this point, the applicant’s representative asked me to adjourn the hearing to give the applicant an opportunity to retain legal counsel. The applicant’s representative indicated that he did not have the ability to properly represent the applicant at a hearing and the applicant indicated that he would be approaching the Human Rights Legal Support Centre for a legal representative. I denied the adjournment request. My reasons for so doing follow.

5I then directed the parties to provide their submissions on timeliness of the Application. Based on those submissions I have concluded that the Application is out of time. My reasons for coming to that conclusion are set out below.

Adjournment request

6The stated basis for the applicant’s adjournment request on the day of the hearing was that he wished to retain legal counsel because his representative was not a lawyer and did not have the ability to represent him at a hearing. The respondent strongly opposed the adjournment request, taking the position that it was prepared to begin the hearing.

7The Notice of Confirmation of Hearing in this matter, advising the parties that the hearing of the Application would take place on May 20 and 21, 2014, was mailed to the applicant on November 6, 2013, more than six months before the commencement of the hearing.

8That Notice advised the parties that requests for adjournments would be dealt with in accordance with the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” which states in relevant part:

Requests for adjournments, particularly at the last minute are a significant impediment to fair and timely access to justice. Therefore the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

9The Tribunal has often held that a party’s failure to retain counsel in a timely manner does not constitute an extraordinary circumstance that warrants adjournment of the hearing.

10In my view, the applicant had ample opportunity to retain legal counsel to represent him in this matter. As noted above, the applicant had over six months since the Notice of Confirmation of Hearing was sent to him to retain legal counsel to represent him at the hearing of the Application. To request an adjournment for this reason on the very day of the hearing, where parties and witnesses were present and prepared to commence the hearing, was, in my view, abusive of the process.

11For these reasons the applicant’s request for adjournment was denied.

Timeliness

12Pursuant to section 34 of the Code the Tribunal will not deal with an application filed more than one year after the last incident of discrimination or a last incident in a series unless it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13The initial onus is on the applicant to show that any delay in filing the Application was incurred in good faith. If he is able to establish good faith, the onus shifts to the respondent to show that it will suffer substantial prejudice as a result of the delay in the filing of the Application.

Was the Application filed within one year of the last alleged incident of discrimination?

14The applicant alleges that he has a disability, namely depression and alcohol dependency. He maintains that throughout the course of his employment he was discriminated against by the respondent in that he was harassed by the respondent and the respondent failed to accommodate his disability. The applicant indicates that he resigned from his employment with the respondent on March 8, 2012. He filed his Application on March 13, 2013.

15To determine whether the Application was filed within one year of the last alleged incident of discrimination, I must first establish the date of the last alleged incident of discrimination.

16The applicant urges me to conclude that the last instance of discrimination was March 14, 2012, which was the last date of a series of post-employment emails between the applicant and the respondent. If I so find, then the Application is timely.

17The respondent argues that the alleged discrimination occurred during the applicant’s employment with the respondent. That employment ended on March 8, 2012, when the applicant resigned from his employment and never returned to work. Therefore, according to the respondent, the limitation period must be calculated from March 8, 2012, at the latest, resulting in an untimely Application.

18The post-resignation string of emails between the applicant and respondent expose a rift between the applicant and the respondent with respect to the amount of outstanding pay to which the applicant was entitled, which was ultimately resolved by the Ministry of Labour, and the need of the applicant to return the respondent’s keys. There is no suggestion that the respondent’s emails were at all influenced by the applicant’s alleged disability and therefore I am disinclined to view the emails as the last incident(s) of discrimination for the purpose of calculating the limitation period.

19The applicant raised several instances of discrimination, albeit only in his Reply filed September 10, 2013, allegedly occurring during his employment with the respondent prior to his resignation from employment with the respondent. That being the case, the last incident of discrimination allegedly occurring during the applicant’s employment would have been no later than March 8, 2012, the day he resigned from his employment, thereafter never again returning to work.

20I find that the last alleged incident of discrimination occurred no later than March 8, 2012. The application was filed more than one year later, on March 13, 2013. As a result, I must consider whether the delay in filing the Application was in good faith, within the meaning of the Code.

Was the delay in good faith?

21The applicant argues that the delay was in good faith because it was very short, only a matter of days, and the applicant’s disability was a factor in the late filing of the Application.

22In considering the issue of good faith the Tribunal has considered many factors: the nature of the allegations; whether the applicant raised allegations in other venues during the period of the delay; and whether reasons related to the Code impeded the applicant’s ability to file an application; Kerry v. City of Ottawa, 2011 HRTO 1940.

23As I have stated, the last incident of alleged discrimination occurred no later than March 8, 2012. I accept that subsequent to this period the applicant was dealing with significant mental health issues. However, there is no basis for me to conclude that these issues prevented the applicant from filing an application in a timely manner. Indeed, it would be inappropriate to assume that an applicant with mental health issues is unable to initiate a timely application solely by virtue of those issues.

24I note that during the delay period the applicant pursued his employment-related rights at the Ministry of Labour and Service Canada. There is no basis to conclude that the applicant’s mental health issues had any impact on his ability to take the steps to pursue his rights in these other venues.

25I also note that the applicant did not provide any medical documentation indicating that his mental health condition impacted his ability to file an application in a timely manner.

26The applicant bears the onus of establishing that his disability impacted his ability to comply with the limitation period. In my view, he has not met that onus. There is no basis to conclude that the applicant’s disability was a factor in the late filing of the Application.

27For these reasons, I am not satisfied that the applicant’s delay in filing the Application was incurred in good faith as required by section 34(2) of the Code.

28For the reasons set out above, I have determined that the Application was filed at least five days late. Although the delay is short, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith. The Code clearly states in section 34(2) that an applicant may not apply to the Tribunal more than a year after the event giving rise to the application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application.

29Having carefully considered the matter, I find that the applicant has not established that the delay in filing his Application was incurred in good faith as required by the Code.

30As the applicant has failed to demonstrate that the delay was in good faith it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay: Gagne v. Maximum Mining, 2010 HRTO 689.

DECISION

31The Application is dismissed pursuant to section 34 of Code. The Application was filed more than one year after the last alleged incident of discrimination. I am not satisfied that the delay was incurred in good faith.