Irby Shepherd v. Intercon Security Ltd., 2015 HRTO 1282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Irby Shepherd

Applicant

-and-

Intercon Security Ltd.

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 25, 2015

Citation: 2015 HRTO 1282

Indexed as: Shepherd v. Intercon Security Ltd.

APPEARANCES

Irby Shepherd, Applicant

Self-represented

Intercon Security Ltd., Respondent

Mathieu Duceppe, Counsel

Introduction

1This Decision deals with the question of whether the Application was filed on time and in accordance with Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which provides as follows:

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.

2A hearing on this matter was held by telephone conference call on September 21, 2015.

3The allegations in the Application concern events following a work-related injury sustained in the course of the applicant’s employment with the respondent in January 2011. The last time the applicant worked for the respondent was in April 2011. The applicant was unable to continue working because of complaints of pain.

4The respondent issued a Record of Employment in November 2011 stating that the applicant was off work and the reason was illness or disability.

5On May 8, 2013, the respondent wrote to the applicant and advised that it was necessary for the applicant to provide a valid security guard license in order to remain as an employee. The letter stated that if the applicant did not provide a copy of a valid security guard license by May 22, 2013, the respondent would assume that the applicant had resigned his employment.

6At the telephone conference call hearing, the applicant agreed that he received this letter. He said that at the time he was too disabled and in too much pain to consider renewing his license. He also felt that since he was too disabled to work, there was no point in renewing his license. He agreed that he did not respond, in writing, to the May 8, 2013 letter but thinks that he may have had a telephone conversation with someone at the respondent’s company. He said that he also regularly provided medical notes stating that he was unable to work.

7On June 12, 2013, the respondent issued a second Record of Employment. It indicated “K” or “other” as the reason for the issuance.

8The next contact between the parties was in January 2014, when the applicant contacted the respondent about returning his uniform so that he could get a deposit refunded. He was advised that he was no longer in the company’s data base, as an active employee.

9The Application was filed with this Tribunal in July 2014. The applicant advised that the reason why it took until July 2014 for him to make an Application following the contact in January 2014 was that he was waiting to speak to his representative, at a community legal clinic. However, the applicant did agree that a representative from the clinic was acting on his behalf at least as early as July 2013, when there is a record that the representative spoke to a Workplace Safety Insurance Board Claims Manager (“WSIB” Claims Manager).

10The applicant submits that the contact in January 2014 was the last incident of discrimination and that since this was within one year of July 2014, when he filed the Application, the Application was filed on time.

11The respondent submits that the contact in January 2014 cannot be seen as an incident of alleged discrimination. The respondent submits that any allegation of discrimination has to be in relation to the period before the applicant’s employment was terminated. The respondent submits that the applicant was aware that his employment had been terminated well before January 2014. The respondent submits that the memo from the WSIB Claims Manager in July 2013 indicates that the applicant’s representative told the Claims Manager that the applicant had been let go by the respondent.

12In addition, the applicant agreed that he received the letter of May 8, 2013, from the respondent. It indicated that the applicant’s employment would be considered to be terminated if he did not provide a valid security guard license. The applicant agrees that he did not provide a valid license.

Analysis and Conclusions

13I do not accept that the applicant only found out that his employment had been terminated when he called in January 2014. In addition to the information suggesting that his representative advised the WSIB in July 2013 that the applicant’s employment had ended, and the May 2013 letter about the security guard license, I note that the applicant did not call in January 2014 to enquire about his employment status. He called to ask about returning his uniform so that he could get a deposit refunded. In my view, this further indicates that the applicant knew that his employment had been terminated.

14I therefore do not accept that the telephone contact in January 2014 could be considered to be an incident of alleged discrimination. It appears to me that the last incident of alleged discrimination would relate to the events in May and June 2013, when the applicant appears to have understood that his employment was terminated.

15The applicant suggests that there is a good faith explanation for the delay, which is that he was waiting to speak to his legal representative. I cannot accept that this is a good faith explanation for the delay because it is apparent that the applicant had a legal representative, at the time, who was actively representing him at the WSIB.

16For these reasons, I conclude that the Application was not filed in accordance with section 34(1) of the Code and that there is not a good faith explanation for the delay. The Application is dismissed on that basis.