Kulikowski v. Ontario Public Service Employees Union, 2015 HRTO 1482

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Kulikowski

Applicant

-and-

Ontario Public Service Employees Union

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 4, 2015

Citation: 2015 HRTO 1482

Indexed as: Kulikowski v. Ontario Public Service Employees Union

WRITTEN SUBMISSIONS

Paula Kulikowski, Applicant

Self-represented

1This Application, filed on August 20, 2015, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.

2The applicant, who works for the LCBO and is represented by the respondent union, alleges that the LCBO refused to transfer her to a location closer to her home to accommodate her disability-related restrictions. The applicant stated that the last incident of discrimination occurred on February 23, 2014. The applicant explained that she filed the Application more than one year after the last incident of discrimination because she filed grievances through her union in September 2014 and nothing further has happened.

3By letter dated October 5, 2015, the Tribunal sent the applicant a Notice of Intent to Dismiss the Application (the “Notice”) advising the applicant that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Notice also advised the applicant that it appeared that the Application was filed more than one year after the last alleged incident of discrimination. The Notice further advised that the applicant did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues.

4The applicant filed written submissions on October 26, 2015. The applicant clarified that her allegations are directed at both her employer and her union. The applicant submitted that her union has been of little assistance to her and is not responsive to her requests for information. The applicant did not provide a further explanation for the delay in filing the Application.

Analysis and Decision

5Section 34 of the Code 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.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

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, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The 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. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14, and Thomas v. Toronto Transit Commission, 2009 HRTO 1582. 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.

8At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. In my view it is plain and obvious that the applicant does not have a good faith explanation for her delay in filing this Application. The applicant believed that her human rights had been violated and filed grievances with her union seeking redress. The applicant filed this Application only after her grievances did not progress, well after the time limit under the Code expired. In these circumstances, I find that it is plain and obvious that the applicant does not have a good faith explanation for the delay in filing the Application.

9The Application is dismissed.