Shaw v. Bombardier Transportation, 2015 HRTO 1132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelso Shaw

Applicant

-and-

Bombardier Transportation

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 26, 2015

Citation: 2015 HRTO 1132

Indexed as: Shaw v. Bombardier Transportation

WRITTEN SUBMISSIONS

Kelso Shaw, Applicant

Self-represented

1The purpose of this Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2On June 4, 2015, the applicant filed an Application with the Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his cover email which attached the Application, he stated: “My union settled this 4 years ago, but I continue to have issues with the settlement. I feel this should have gone to arbitration.”

3In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “16/08/2011”. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), he wrote:

I continue to suffer due to how my termination from Bombardier was settled in 2011. I am currently unemployed again as a result of what happened, and I feel what happened there needs to be formally addressed.

4The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

5On July 24, 2015, the Tribunal issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because, among other things, it was filed outside the one-year time limit in s. 34(1) of the Code. The Tribunal directed the applicant to provide written submissions in response to this issue.

6The applicant filed several sets of written submissions in response to the NOID, but none of them squarely address the timeliness issue.

7Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

8Given that the last alleged incident of discrimination/reprisal occurred on August 16, 2011, but the Application was not filed until June 4, 2015, I find that the Application was filed approximately two years and 9.5 months outside the one-year time limit in s. 34(1) of the Code.

9The main issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

10In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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.

In 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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

11In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

12In my view, it is plain and obvious that the applicant’s delay in filing his Application was not incurred in good faith. Despite being directed to do so by the Tribunal’s NOID, he has not provided a clear explanation why he did not file his Application within the one-year time limit in s. 34(1) of the Code. The reasons that he provided in his Application, namely, that he continues to have issues with the settlement of his union grievance, he believes that the grievance should have gone to arbitration, and he continues to suffer as a result of how the grievance was settled, do not constitute a reasonable explanation for not filing his Application within the one-year time limit.

13In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

14The Application is dismissed.