Morris-Davis v. Meadow Park Inc., 2014 HRTO 9

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Morris-Davis

Applicant

-and-

Meadow Park Inc., Andrew Adamyk and Lia Dionysakopoulos

Respondents

DECISION

Adjudicator: Naomi Overend

Date: January 6, 2014

Citation: 2014 HRTO 9

Indexed as: Morris-Davis v. Meadow Park Inc.

WRITTEN SUBMISSIONS

Jacqueline Morris-Davis, Applicant

Judy Gayford, Counsel

Introduction

1The applicant filed an Application on October 7, 2013 alleging discrimination in employment on the basis of colour and race, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application contains allegations relating to an interview that took place at the organizational respondent on May 8, 2012.

2On November 26, 2013, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) for delay. The applicant filed submissions in response to the Notice on December 24, 2013. It would appear from the submissions that the applicant mistakenly believed that the NOID was, in fact, a dismissal and her submissions were in the nature of a reconsideration request. The Tribunal will treat these submissions as responsive to the NOID since they squarely address the issue of delay.

decision and analysis

3Section 34 of the Code states in part:

(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.

4As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.

5By way of background, the applicant filed a Small Claims Court action on January 13, 2013 after she discovered, in or around December 12, 2012, that the respondents had filed a letter with the College of Nurses about an alleged misrepresentation. The Small Claims Court matter does not address the allegation of racial discrimination in the interview in May, but rather the respondents’ decision to file the letter with the College of Nurses, which the applicant pleads was motivated by racism.

6On September 6, 2013, the applicant attended a settlement conference at which time she states she was advised to file an application with this Tribunal. The respondents apparently brought a Motion to Dismiss on September 18, 2013. This Application was filed on October 7, 2013.

7The applicant acknowledges that the last act of discrimination in her Application occurred in May 2012, some 17 months before her Application was filed and is, therefore, outside the one-year time limit set out in the Code. However, she submits that the delay was incurred in good faith while she mistakenly pursued litigation in another forum.

8The difficulty with the applicant’s argument is that she did not pursue the issue of discrimination set out in her Application to this Tribunal in the Small Claims Court action. That is, the civil claim addresses the respondents’ act of reporting her to the College of Nurses, while this Application addresses the respondent’s actions in interviewing and not hiring her, which took place seven months earlier.

9The applicant has provided no explanation for why she did not pursue her claim of discrimination vis-à-vis these May 2012 allegations in any forum in a timely manner. Her submissions suggest that the applicant may have been ignorant of her rights, but this Tribunal has found that a delay may be found not to have been incurred in good faith where a party simply says that they were not aware of their rights, and made no inquiries about options for pursuing their rights: Lutz v. Toronto (City), 2009 HRTO 113.

10Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.

11The Application is dismissed.