Boyd v. McMaster University, 2015 HRTO 1255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Boyd

Applicant

-and-

McMaster University and Unifor Local 5555

Respondents

DECISION

Adjudicator: Naomi Overend

Date: September 21, 2015

Citation: 2015 HRTO 1255

Indexed as: Boyd v. McMaster University

WRITTEN SUBMISSIONS

Susan Boyd, Applicant

Karen J. Sanchez, Counsel

Introduction

1The applicant filed an Application on July 7, 2015 alleging discrimination in employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application contains allegations culminating in what she states was a discriminatory lay-off that took place on February 11, 2014.

2On July 28, 2015, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) for delay. The applicant filed submissions in response to the Notice on August 31, 2015.

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.

5The applicant acknowledges that the last act of discrimination in her Application occurred outside the one-year time limit set out in the Code. However, she submits that the delay was incurred in good faith.

6In her submissions to the NOID, the applicant asserts that she delayed filing because she hoped that a grievance process she initiated would result in “the Employer [taking] responsibility for the discriminatory nature of the lay-off.” Specifically, the applicant states that, following the initiation of the grievance, she was advised of a newly created Joint Anti-Harassment unit. The employer commenced an investigation in 2015, which the applicant states was concluded on July 9, 2015. She takes the position that it does not address what she alleges was a discriminatory lay-off.

7This Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. Likewise, the Tribunal has applied this reasoning to internal investigations as well. See Agyei-Abankwa v. University of Windsor, 2012 HRTO 92. There was nothing to prevent the applicant from filing a separate human rights Application even while pursuing her grievance or the internal investigation.

8Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application.

9The Application is dismissed.