Cloutier v. CABO Drilling Corporation, 2015 HRTO 1269

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Cloutier Applicant

-and-

CABO Drilling Corporation Respondent

DECISION

Adjudicator: Jennifer Scott Date: September 23, 2015 Citation: 2015 HRTO 1269 Indexed as: Cloutier v. CABO Drilling Corporation

WRITTEN SUBMISSIONS

Thomas Cloutier, Applicant Cheryl MacKinnon, Representative

Introduction

1The applicant filed an Application on May 1, 2015, alleging discrimination in employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application concerns the termination of the applicant’s employment on October 24, 2013.

2On June 22, 2015, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) because the Application was filed more than one year after the last incident of discrimination, in this case, the termination of the applicant’s employment. The Tribunal received the applicant’s submissions in response to the NOID on September 10, 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.

4The applicant acknowledges that the last act of discrimination in his Application occurred outside the one-year time limit set out in the Code. However, he submits that the delay was incurred in good faith pursuant to section 34(2) of the Code.

5As 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 he did not pursue his Code rights in a timely manner.

6In his submissions to the NOID, the applicant asserts that he delayed filing the Application because he was pursuing an application before the Ontario Labour Relations Board. That application was withdrawn by his former representative on February 3, 2014, without his knowledge. The applicant asserts that due to the incompetence of his former representative, whose license has since been revoked by the Law Society of Upper Canada, the applicant missed the limitation period to reopen his complaint with the Ontario Labour Relations Board.

7The applicant then filed a claim before the Small Claims Court on July 3, 2014. That claim was discontinued on October 3, 2014 because of the applicant’s concern that an adverse costs award could be made against him in a motion brought by the defendant to dismiss the claim for jurisdictional reasons.

8The Application before the Tribunal was filed on May 1, 2015 in relation to a termination of employment on October 24, 2013. The applicant states the Application was brought in an effort to “right a wrong” so that he may move forward with his life.

9The good faith explanation given by the applicant is that he was pursuing other legal avenues before coming to the Tribunal, and that he withdrew from the other proceedings, one involuntarily because of the incompetence of his former representative. There is no other reason given by the applicant as to why he waited 18 months to file this Application.

10This 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. As such, I find the applicant has failed to establish that the delay was incurred in good faith. In light of this finding, the Tribunal is without jurisdiction to deal with this Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697.

11The Application is dismissed.