HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Mills
Applicant
-and-
Historia Specialized Care Inc., Nalini Singh-Boutilier, Lorida Galante, Immortalizing Marketing & Promotions Inc.
Respondents
Decision
Adjudicator: David Muir
Indexed as: Mills v. Historia Specialized Care Inc.
WRITTEN SUBMISSIONS
William Mills, Applicant
Self-represented
Historia Specialized Care Inc., Nalini Singh-Boutilier, Lorida Galante, Immortalizing Marketing & Promotions Inc., Respondents
Gerry Falletta, Counsel
1This Application alleges discrimination with respect to employment because of sexual orientation, gender expression, and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant identifies as a gay man. He alleges that he experienced discrimination in employment as a volunteer with the respondent Historia Specialized Care Inc. He relies on a number of incidents during his period of employment and many more which occurred after his relationship with Historia ended in June of 2011. The Application was filed in December 2012, more than 12 months after his employment relationship ended.
3A summary hearing was held on May 14, 2014, to hear the parties’ submissions with respect to whether all or part of the Application should be dismissed because it has no reasonable prospect of success.
4In canvassing the issues with the parties it became apparent that there may be a delay issue in this case given that it was filed more than one year after the last incident of discrimination in employment. In a Case Assessment Direction issued on May 15, 2014 I directed the parties to deliver and file their submissions with respect to the delay issues and they have done so.
5For the reasons that follow I find that this Application must be dismissed because it was filed more than 12 months after the final incident of employment discrimination alleged by the applicant.
6Section 34 (1) and (2) of the Code read 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 has interpreted these provisions of the Code as requiring that 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. The provision has been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
8The Tribunal may consider an untimely Application where the applicant is able to establish that there is a good faith explanation for the delay and that there would be no substantial prejudice to any party should the Application proceed. The Tribunal has also held that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith” the applicant must show something more than the absence of bad faith.
9As indicated the applicant alleges that he experienced discrimination in employment because of sexual orientation, gender expression, and gender identity. He was employed as a volunteer with the organizational respondent from December 2010 to June 2011. Accordingly the employment relationship ended in the summer of 2011 and the Application was filed on December 14, 2012.
10The Application is out of time unless I can as argued by the applicant find that a number of allegations of incidents after the employment relationship ended are connected to his employment and therefore could be considered to be incidents “with respect to employment”.
11There are voluminous allegations from both sides of the conflict between the parties which seems to involve a number of individuals not all of whom had any connection to the employment relationship. As indicated the employment relationship ended in June 2011. Beginning not long after that, the parties (and others connected to them) have been embroiled in ongoing conflict which has resulted in multiple legal proceedings including criminal investigations; a claim by the applicant under the Employment Standards Act; competing civil suits and several further Applications before the Tribunal alleging harassment of the individual respondents by the applicant.
12Many of the allegations of the applicant relate to statements made or positions taken in these various other legal proceedings including statements made to police officers and employment standards officers in the course of their investigation. In addition the applicant alleges that comments have been made in social media about the applicant by the individual respondents or individuals connected to them which were inappropriate.
13The allegations of the applicant, to the extent that they can be said to relate to the Code at all, are incidents of alleged discriminatory remarks relating to his sexual orientation made on social media. The applicant also alleges that information he provided to the individual respondents while employed by them (but unrelated to his employment) has been misused by them in a campaign of harassment of him subsequent to his employment. He also argues that what he would characterize as homophobic remarks and actions by the respondents confirm and support his contention that he experienced discrimination while employed – ex post facto similar fact evidence, if you will.
14In my view none of the post-employment conduct relied on by the applicant is connected to the ground of employment. The applicant argues that the substance of some of the allegedly inappropriate discussion on social media was based on things the applicant told the individual respondents while employed by them. Assuming that this is the case this is not sufficient to connect it to his employment to engage the Code. I note again that the information provided by the applicant to the respondents was not related to his employment and to the extent that it can be said to have had employment consequences at the time this ended at the latest when the employment relationship ended in June 2011. As regards the other allegedly discriminatory or inappropriate comments made on social media I note again that these all occurred after the employment relationship had ended and had no employment related consequences for the applicant either in relation to the employment relationship with the respondents or any actual employment he was engaged in at the time. Whether appropriate or not the discourse on social media is unconnected in any meaningful way with the social area of employment and cannot be said to be “with respect to employment” in the Code. See Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583.
15In my view the Application is out of time because the last alleged incident of discrimination in employment occurred at the latest in April 2011. The Application was filed in December 2012. The applicant offered no explanation for the delay in filing this Application and accordingly there is no reason to consider whether or not he has a good faith explanation for the delay.
16For these reasons the Application is dismissed.
Dated at Toronto, this 28th day of May, 2014.
“Signed by”
David Muir
Vice-chair