B.B. v. M.R.C.L., 2015 HRTO 1602

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.B. Applicant

-and-

M.R.C.L. and E.F.I. Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: November 26, 2015 Citation: 2015 HRTO 1602 Indexed as: B.B. v. M.R.C.L.

WRITTEN SUBMISSIONS

B.B., 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 the Tribunal’s initiative, I have anonymized the names of the parties in this case for the following reasons. Rule 3.11 of the Rules of Procedure permits the Tribunal, where it considers it appropriate to do so, to make an order to protect the confidentiality of personal or sensitive information. I recognize that anonymization is a rare and extraordinary step because of the importance of openness and transparency in legal proceedings. However, in my view, because of some of the facts of this case, which are set out below, this is one of those exceptional cases where there is an overriding need to protect privacy interests.

3The applicant’s wife committed suicide in her home on February 21, 2013. The applicant was not at home, but their children were, and one of them discovered her body. The applicant’s wife left a note, which alleged that she had experienced harassment in her former workplace, and indicated that her husband and children were not at fault. According to the applicant, their children now have post-traumatic stress disorder.

4Over the next several months, the applicant pursued a complaint with the Ministry of Labour (“MOL”) with respect to the alleged harassment that his wife had experienced in her former workplace. The MOL’s manner of handling his complaint and its findings were not satisfactory to the applicant.

5On September 8, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against his wife with respect to employment because of her race, colour, place of origin, ethnic origin, and creed, which led to her suicide and damages to him and his children.

6In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “21/02/2013”. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), he wrote an answer, but it did not address why he was applying more than one year from the last event.

7On October 15, 2015, the Tribunal’s Registrar 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 Registrar directed the applicant to provide written submissions in response to this issue.

8On November 12, 2015, the applicant filed written submissions in response to the NOID.

9Rule 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 c. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

10The 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.

11Given that the last alleged incident of discrimination/reprisal occurred on February 21, 2013, but the Application was not filed until September 8, 2015, I find that the Application was filed approximately one and a half years outside the one-year time limit in s. 34(1) of the Code.

12The main issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

13In 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.

14In 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).

15In his submissions, the applicant stated that his delay in filing the Application was incurred in good faith because after his wife’s death, within one year, he asked the police, the MOL and the head office of his wife’s former employer to investigate the harassment that she experienced in her former workplace, and the Application to the Tribunal is continuation of that process. He also stated that he was waiting for these organizations to deliver justice.

16In my view, it is plain and obvious that the applicant’s delay in filing his Application was not incurred in good faith. It is obvious from Application and the applicant’s submissions in response to the NOID that he could have filed his Application within the one-year time limit in s. 34(1) of the Code, but did not do so, and then chose to do so only when he received unsatisfactory results from the police, the MOL, and the head office of his wife’s former employer with respect to his complaint that the alleged harassment that she experienced in her former workplace led to her suicide. Waiting for other 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 Cartier, above, at para. 23.

17In 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.

18Accordingly, the Application is outside the Tribunal’s jurisdiction. In view of this finding, it is not necessary to consider the other issues raised in the NOID.

19The Application is dismissed.