Vushaj v. ADM Agri-Industries Company, 2015 HRTO 19

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bardhok Vushaj Applicant

-and-

ADM Agri-Industries Company Respondent

DECISION

Adjudicator: Kathleen Martin Date: January 7, 2015 Citation: 2015 HRTO 19 Indexed as: Vushaj v. ADM Agri-Industries Company

WRITTEN SUBMISSIONS

Bardhok Vushaj, Applicant Kendal McKinney, Counsel

ADM Agri-Industries Company, Respondent George King, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination on the basis of ancestry, place of origin, ethnic origin, sexual orientation and family status.

2The Application was filed on July 11, 2013 and arises out of events that concluded December 15, 2010. At the time of filing, the applicant explained the delay by stating that the respondent is “listed as a federally regulated employer”, consequently, the complaint was brought to the Canadian Human Rights Commission (“the Commission”), the respondent made submissions that the division/work area of the applicant fell under provincial jurisdiction and that the Commission eventually dismissed the application on jurisdictional grounds in a decision dated June 26, 2013.

3A Response was filed which, among other things, stated that the Application should be dismissed for delay.

4By Case Assessment Direction, the Tribunal sought further written submissions on the issue of delay. Submissions were filed by the applicant and respondent.

5This Decision addresses the issue of delay. In reaching my decision below, I have considered the material filed in the Application, Response and Reply as well as the parties’ submissions in response to the Case Assessment Direction.

Background

6The Application arises out of the applicant’s employment and termination from employment with the respondent. The respondent is an agricultural processing facility located in Windsor.

7The applicant was employed from February 5, 1996 to December 15, 2010. The applicant was terminated on the latter date following an alleged altercation with another employee in which the applicant alleged he was subjected to inappropriate comments related to grounds under the Code. The applicant alleges that he was treated differently by the respondent following a parental leave in 2009 when he spoke directly and forcefully to senior managers about not being given a promotion and that this led to disciplinary difficulties in 2010 including his termination.

8Initially following his termination, the applicant filed a grievance with his union. While the applicant did not directly refer to the timing of all of his interactions with the union, it would appear from the material filed that the union advised the applicant in June 2011 that it would not be proceeding with the grievance to arbitration. On September 28, 2011, the applicant wrote to the union appealing the decision, but no reply was received.

9On December 12, 2011, the applicant through his counsel commenced the process of filing a complaint with the Canadian Human Rights Commission. Under the federal legislation, it would appear that the Commission can refuse to deal with a complaint because the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before the receipt of the complaint. In the case of the applicant, the applicant counsel contacted the Commission by telephone on December 12, 2011. On December 30, 2011, an early resolution analyst of the Commission sent the applicant the complaint form and instructions for filing. With respect to the issue of a deadline the early resolution analyst stated:

Should you decide to file a complaint, you should do so without delay. Please bear in mind that the Commission can refuse to deal with a complaint under section 41 (1)(e) of the Canadian Human Rights Act if the complaint is filed more than one year after the alleged discrimination took place.

If we do not receive the signed Complaint Form and contact sheets by February 3, 2012, we will assume that you do not wish to pursue the matter and your file will be closed.

10On February 2, 2012, the applicant couriered the formal complaint by overnight courier. The complaint was delivered on February 6, 2012 (marked as received by the Commission on and given a complaint date of February 7, 2012). According to the applicant, Canada Post did not offer an explanation of why it was not delivered on February 3, 2012.

11During the Commission process, on March 30, 2012, the respondent took the position that the Commission should refuse to deal with the Complaint because the respondent is subject to provincial jurisdiction and the complaint was therefore outside the scope of the Commission’s jurisdiction. The respondent raised other preliminary issues including that the Commission should refuse to deal with the complaint because it was filed more than one year after the applicant’s termination.

12On February 14, 2013, an early resolution advisor of the Commission issued a report. The early resolution advisor recommended that the Commission not deal with the complaint because the respondent does not fall within the legislative authority of Parliament; and because it was based on acts which occurred more than one year before the complaint was filed, the complaint had not provided a reasonable explanation for the delay in filing and the respondent may be seriously prejudiced by the investigation of the complaint.

13The applicant filed submissions in response to the report on March 21, 2013. On the issue of jurisdiction, the applicant stated:

The complainant took no position with respect to jurisdiction as the complaint was made pursuant to the listing of the former employer as a federally regulated industry on the Service Canada website. The complaint was therefore made in good faith and with a genuine belief that the Canadian Human Rights Commission was the correct forum to bring the complaint to.

At the time of making the complaint, the complainant did not have the benefit of the detailed information subsequently submitted by the respondent with respect to the structuring of respondent’s operations. The complainant was a labourer, not a senior manager of the respondent. The complainant takes no position with the factual submissions made by the respondent with respect to the proper jurisdiction and the structuring of the respondent’s operations.

Likewise the complainant takes no issue with the legal analysis made by Ms. Bouchard with respect to jurisdiction. The analysis appears to be sound, based on the information given by the respondent.

There is therefore no dispute with respect to the recommendation to not proceed due to a want of jurisdiction.

(emphasis added)

14On March 22, 2013, the respondent also filed submissions concurring with the findings of the investigator’s report. Thereafter, on May 13, 2013, the respondent sent a further letter adding that as the matter is moot and as the Commission is without jurisdiction in any event, it would be inappropriate for the Commission to make any findings with respect to the applicant’s submissions on the issue of delay.

15On June 12, 2013, the Commission rendered a decision. The Commission decided not to deal with the complaint under paragraph 41(1)(c) of the Canadian Human Rights Act. The Commission’s reason was that although most of the respondent’s operation fell under federal jurisdiction, it was clear that the Windsor processing plant, in which the complainant worked, fell under provincial jurisdiction. The Commission did not address the issue of delay.

16A copy of the decision was sent to the applicant on June 26, 2013 and as indicated above, the Application was filed at the Tribunal on July 11, 2013.

The Parties’ Submissions

17The respondent submits that the Application should be dismissed for delay.

18The respondent submits that the Application was filed 31 months after the termination and the applicant is unable to establish that the delay was incurred in good faith. The respondent states that the applicant knew or should have known that the respondent was subject to provincial jurisdiction and that the Tribunal has previously observed that a mistake regarding jurisdiction is not a “good faith” justification for delay citing Eskaros v. Canada Post 2012 HRTO 476 and Nyitray v. Ryerson University Students’ Union 2012 HRTO 2336. Further, even if the applicant’s delay with respect to forum can be deemed to be in good faith, the respondent submits that the applicant has provided no explanation for his initial delay in filing his complaint and his delay in filing the Application after he expressly conceded that the Tribunal was the proper forum on March 21, 2013. The respondent submits that these latter delays are solely attributable to the conduct of the applicant.

19The applicant disagrees. The applicant submits that the submission of the matter to the Commission was properly done in accordance with the information known and knowable to the applicant at the time and almost all other delays were either directly or indirectly a result of the Commission’s methods and processes or the respondent’s own jurisdictional objection. The applicant submits it is not fair, just or reasonable for the respondent to object to the federal human rights regime and then object to the timeliness of the Application at the Tribunal due to the necessary delay brought on by their own objection.

20The applicant submits that he did contact the Commission prior to the one year anniversary of the termination and understood that all rights had been preserved by the fact that the responsibility for issuing forms lay with the Commission and the Commission had been given effective notice of the matter. The applicant states that an agent of the Commission assured the complainant and his counsel to that effect.

21The applicant acknowledges there was a delay between January 5, 2012 (the date by which time he had received the forms) and February 2, 2012 (when he couriered the completed forms). However, he states that he had a right to rely on the express deadline of February 3, 2012 given by the Commission (noting the file number assigned was 2011). In any event, the applicant states that the Tribunal may not rule on the administrative processes and procedures of the Commission.

22The applicant submits that the delay in filing with the Tribunal until after the final disposition of the matters before the Commission was entirely proper and necessary to avoid the abuse of the process of duplicative proceedings. The applicant states that it was both reasonable and required to await the ruling of the Commission on both the matters that were before it. The applicant states that the respondent could have withdrawn its objections to the issue of alleged delay and had the matter dismissed on the issue of jurisdiction alone but it did not do so until May 13, 2013. The applicant states that the “16 day” delay after being notified of the Commission’s disposition cannot be characterized as “undue delay” under any circumstances.

23The applicant referred to a number of cases in his submissions including Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, Kelly v. CultureLink Settlement Services 2010 HRTO 977 and Gagne v. CHRC and CPC, 2007 CHRT 18.

DECISION

24Section 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.

25Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34 (2) exist, i.e. that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

26I address first the question of good faith.

27As the Tribunal stated in Miller v. Prudential Real Estate, 2009 HRTO 1241 in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

28In order to satisfy the Tribunal that delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his/her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The Tribunal has set a 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): see Miller, above.

29Further, the 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 Chen v. Toronto Police Services Board, 2012 HRTO 1889 and the cases cited at para. 21.

30In this case, the Application was filed approximately 31 months after the last incident of discrimination or approximately 19 months after the statutory limitation period, which is not insignificant. The applicant’s explanation for this delay is that the respondent was listed on a Service Canada website as a federally regulated entity and that he therefore pursued his complaint with the federal Commission. According to the applicant, the submission to the Commission was “properly” done in accordance with information known and knowable and almost all other delays were either directly or indirectly a result of the federal Commission’s methods and processes or the respondent’s own jurisdictional objection.

31As a general observation, I accept that in some circumstances, a genuine belief that a matter is properly within the federal jurisdiction may provide a good faith explanation for a delay in filing at the Tribunal. However, I do not find that the applicant has convinced me that in the circumstances of this case, the entirety of the 19 month delay was incurred in good faith.

32It is not clear to me that the applicant commenced a timely complaint at the federal level. It appears that the applicant only contacted the Canadian Human Rights Commission three days prior to the expiry of one year after his termination. Even assuming that this contact was sufficient to commence a complaint in that jurisdiction given that the applicant submits that he was assured that time limits were preserved by a representative of the Commission, I note that the actual physical form was not submitted until February 6/7, 2012 (both of which were outside even the deadline given in the letter given to the applicant by the Commission). In fact, the Commission used February 7, 2012 as the date of complaint which is four days after the deadline given in the Commission’s letter.

33In any event, even if I assume without finding that the applicant did file within time at the federal jurisdiction and that he genuinely believed that he was in the proper forum and again assuming without finding that this genuine belief is a good faith explanation for the initial delay, I am not convinced that the applicant has provided a reasonable explanation for the entirety of the remaining delay.

34Notably as of March 2012, the respondent objected to the Commission’s jurisdiction. While the applicant does not indicate when he received a copy of the respondent’s submissions, it is clear that he did at some point given that the applicant filed them in this proceeding. Receipt of these submissions would have put the applicant on notice that he may be in the wrong forum.

35Moreover, in my view, the applicant’s belief that the applicant was in the proper forum should have been further eroded by the report of the early resolution advisor in February 2013 when she recommended that the Commission not deal with the complaint because it was not in the federal jurisdiction. As an observation, I note that the early resolution advisor’s report reflects that although the parties were invited to provide their submissions on the jurisdictional issue, neither the applicant nor his representative provided the Commission with a position on the factors for a Commission decision (which I presume means that the applicant did not make submissions in support of its original view that it was federal to the early resolution advisor).

36If there was any continuing uncertainty of the applicant’s view on forum, as of March 21, 2012, the applicant made it clear that he was accepting that he was in the wrong jurisdiction insofar as he accepted the recommendation of the early resolution advisor. In light of the applicant’s concession with respect to jurisdiction, there is no basis to find that the applicant continued to have a genuine belief that he was in the proper forum for his human rights complaint so as to provide a reasonable explanation for the continuing delay.

37I do not agree with the applicant that it was reasonable in these circumstances to await the “final” decision of the federal Commission before filing here because to proceed otherwise would result in duplicative proceedings which would be an abuse of process. The Tribunal often receives applications where there are other proceedings about the same subject matter and has the ability to defer where it would be appropriate to do so to avoid duplicative proceeding (see, for example, Davis v. Compton Cable T.V. 2009 HRTO 179). As an aside, I would not presume that the Tribunal would find it appropriate to defer in the circumstances of this case particularly by the time it was apparent that the parties had the same view on jurisdiction.

38I also find that there is no merit in the applicant’s submission that the respondent was somehow responsible for his own delay in filing provincially, merely by challenging the federal Commission’s jurisdiction. There is no connection between the respondent’s challenge of the federal Commission’s jurisdiction and the applicant’s failure to file provincially. If anything, as I have noted above, it should at minimum have put the applicant on notice that he should be taking immediate steps to attempt to preserve his rights provincially.

39Finally, it warrants mention that even once he received the Commission’s decision the applicant acknowledges that he took a further 16 days to file the Application here (on my calculation 15 days). Whether or not the additional 15 or 16 days of further delay was significant, in my view it required a good faith explanation. The Tribunal has found that an applicant must establish a good faith explanation for even a very short delay in filing beyond the one year statutory timeframe. See for example Perruzza v. Active Green and Ross, 2013 HRTO 436 and Gagne v. Maximum Mining, 2010 HRTO 689 at paras. 9 – 10, both of which were dismissed for only a six day delay in filing beyond the one year deadline where there was no reasonable explanation for the delay. In this case, I do not find that the applicant’s assertion that the period after June 26, 2013 cannot be reasonably characterized as “undue delay under any circumstances” is a good faith explanation particularly where the Application was already almost 19 months out of time.

40In all of the circumstances, I am not convinced that the applicant has provided a reasonable explanation for the 19 month delay in filing. I am therefore not satisfied that the delay was incurred in good faith.

41In reaching this conclusion I have considered the cases cited by the applicant including Blencoe. However, I do not find that the principles in Blencoe are directly applicable to the determination of the issue of good faith in the context of the statutory provisions of the Code.

42In view of my conclusion with respect to good faith, I do not find it necessary to address the respondent’s position that they have been prejudiced by the delay.

43Further, I do not find it necessary to address the remaining preliminary issue of whether another proceeding has appropriately dealt with the substance of the Application.

44The Application is dismissed.