Human Rights Tribunal of Ontario
B E T W E E N:
Thomas Aikens
Applicant
-and-
Algoma District School Board
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Aikens v. Algoma District School Board
1This Decision concerns whether the applicant is permitted to proceed with the Application that was filed more than one year after the alleged events to which the Application relates.
2Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) provides:
- (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.
3The Application concerns the termination of the applicant's employment in January 2014 and the events leading up to the termination. The Application was filed with the Tribunal on May 28, 2015, which was more than one year after the events alleged in the Application.
4The Application was not delivered to the respondent. The Tribunal issued a Notice of Intent to Dismiss on July 12, 2015, inviting the applicant to make submissions about the delay. The applicant made submissions on August 10, 2015 and these have been reviewed.
5The applicant submits that there is a good faith explanation for the delay in filing the Application. He states that he was focussed on trying to get his job back. In pursuit of that goal, the applicant filed a grievance with his union, which proceeded to arbitration. However, at the arbitration hearing, the respondent argued that the union could not bring the grievance because the applicant was a casual employee. The arbitrator found that because of the language of the collective agreement, and the applicant's employment status, the matter was not arbitrable and the grievance was dismissed on that basis. The arbitrator’s decision is dated February 20, 2015.
6As noted, the applicant filed the Application on May 28, 2015, approximately three months after the arbitrator’s decision.
Conclusions
7The applicant submits that there may not have been a delay in filing the Application. He submits that the arbitration and the events before the arbitrator were discriminatory and he notes that the Application was filed within one year of the arbitration. The applicant does not explain in what way the arbitration was discriminatory. The issue that was before the arbitrator was whether she had jurisdiction to deal with the grievance and there is no basis to suggest that this was discriminatory or that it was discriminatory for the respondent to raise the issue of jurisdiction at the outset of the proceeding.
8The applicant submits that there is a good faith explanation for the delay, which is that he was expecting the arbitrator to deal with the matter and he filed the Application after he found out that the arbitrator was not going to deal with the matter.
9The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraph 24:
In my view, where 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. The Code requires 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. This is a mandatory provision, 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. 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.
10The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an Application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
11In this case, I understand why the applicant may not have filed an Application in the period before the arbitration hearing when he believed that the matter would be dealt with by an arbitrator who would consider his grievance, which included the human rights allegations he has made in the present Application. However, as noted above, this alone would not likely provide a good faith explanation for the delay as the Tribunal ordinarily expects an applicant to file an Application in a