Human Rights Tribunal of Ontario
B E T W E E N:
Tanver Javaid
Applicant
-and-
Xerox Canada Ltd. and Teamrecruiter.com
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Javaid v. Xerox Canada Ltd.
APPEARANCES
Tanver Javaid, Applicant
Self-represented
Xerox Canada Ltd. and Teamrecruiter.com, Respondent
Brian Silva, Counsel
BACKGROUND
1The applicant was employed by the respondents for one day of work, April 18, 2012. He was told on that same day that his services were no longer needed. The applicant believes that this decision was made based on a prohibited ground.
2On April 22, 2014, the applicant filed the Application which alleges discrimination with respect to employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which he indicates that the last incident of discrimination occurred on April 18, 2012. The applicant provided a few explanations for filing the Application late, including that he was advised by the Human Rights Legal Support Centre ("HRLSC") that he had two years to file the Application, that he started school in September 2012 and that he went to Pakistan in November 2013 to assist his sister.
3On May 18, 2014, the Tribunal issued a Notice of Intent to Dismiss the Application ("NOID") on the basis that it was not filed within one year of the last incident of discrimination.
4On June 8, 2014, the applicant filed additional submissions in response to the NOID in which he also takes the position that the respondents were "legally bound to accommodate the applicant with an assignment until April 19, 2013". The applicant also takes the position that every time another individual was put in the applicant's former position that this constitutes further incidents of discrimination.
5In a Case Assessment Direction ("CAD") dated July 3, 2014, the Tribunal directed that a one-day, in-person hearing would be convened to determine the issue of delay. The respondents were advised that they did not need to file a Response.
6In this CAD, the applicant was directed to file detailed witness statements and to obtain his file from the HRLSC in advance of the hearing. When it became clear that the applicant would not be calling evidence from the HRLSC, the respondents issued two summonses compelling the attendance from two witnesses from the HRLSC. In advance of the hearing, the applicant filed a Form 10, Request for an Order During Proceeding (the "RFOP") in which he sought to prevent the testimony of the two HRLSC witnesses. He explains in his RFOP that he believes that the two HRLSC witnesses have become adverse in interest and that they altered his file with the HRLSC.
The Preliminary Hearing
7The in-person preliminary hearing took place on February 2, 2014, in Toronto. The two HRLSC witnesses were in attendance pursuant to the summons. I heard the applicant's submissions on the issue of whether the HRLSC witnesses should be permitted to testify. In essence, the applicant was taking the position that the HRLSC witnesses should not testify because they were lying and not telling the truth.
8I made the following rulings during the hearing;
a. I found that the applicant had waived any solicitor-client privilege attached to his communications with the HRLSC because he was relying on these conversations for the purposes of establishing that there was good faith in filing the Application in his submissions to the Tribunal, and during his opening statement to the Tribunal. I note that in his submissions he also wanted to expressly rely on the fact that he was told by the HRLSC that he had a meritless complaint in August, 2012;
b. In accordance with the issued summons, the HRLSC brought a copy of the applicant's file and I ordered the HRLSC to comply with the issued summons and to provide me with a copy of this document;
c. The applicant was also directed to provide the Tribunal with a copy of the file that he obtained from the HRSLC;
d. I also found that the two HRLSC witnesses had relevant information and should be permitted to testify because it appeared that their evidence was central to the applicant's evidence; and
e. I ordered the exclusion of the HRLSC witnesses during the applicant's testimony.
9The applicant testified that he called the ("HRLSC") on April 19, 2012, the day after his employment was terminated. The applicant states that he was told that he had two years to file an Application with the Tribunal. He made an appointment to speak with an advisor on August 8, 2012.
10On August 8, 2012, after speaking with the advisor, and based on the advice that she gave him, he decided to abandon filing an Application with the Tribunal. He was advised that the HRLSC would not be representing him before the Tribunal. The applicant testified that there was no discussion with the HRLSC representative with respect to the deadline for filing the Application. He was referred to the website for information on how to file a complaint with the Tribunal.
11In September 2012, the applicant commenced paralegal school which ended in the spring of 2013. The applicant stated that he was a lawyer in Pakistan.
12On March 4, 2013, the applicant called the HRLSC because he disagreed with the legal advice that was given to him in August 2012. The applicant testified that during this phone conversation he was advised that he had to file his Application within one year of the last incident of discrimination.
13The applicant testified that he went back home to Pakistan to look after his sister in November 2013 until April 2014. After talking to a friend he decided that he would file an Application with the Tribunal. The applicant testified that it took him three days to fill out the Application and he filed it electronically from Pakistan using his nephew's computer. Though he sent the Application on April 17, 2014, it was only processed by the Tribunal on April 22, 2014, because the Tribunal was closed on Good Friday and Easter Monday.
14After I heard the applicant's evidence, I advised the parties that it was not necessary for me to hear the evidence of the two HRLSC and they were dismissed by the Tribunal.
The Law
15The Tribunal's power to hear and determine human rights applications is based on the Code. Section 34 states:
(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.
16The first issue that the Tribunal must determine is the date of the last incident of discrimination.
17In the decision of Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal reviewed at length the factors it will consider in determining the date of the last incident of discrimination, including the distinction between a series of incidents as opposed to the continuing effects of a discriminatory incident, stating at paras. 32 and 36:
As we have indicated, the underlying principle from the Divisional Court's decision in Visic, supra, where the Ontario Divisional Court adopted the test for a "continuing contravention" was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:
What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the "continuing contravention" under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.
In situations where the employment relationship ends and the applicant receives payments from his or her former employer in the form of severance monies, benefits or pension amounts, the Tribunal has generally held that the date of separation is the last incident of discrimination. These determinations are notwithstanding the applicant's assertion that the discriminatory effects of the monetary payments and/or ongoing settlement discussions amount to further incidents of discrimination under section 34(1) of the Code. See Longtin v. Great West Life Assurance Company, 2011 HRTO 244 at para. 18; Hiamey v. Conseil Scolaire de District Catholique Centre Sud, 2012 HRTO 301 at para. 24; and Bezaire v. Prestressed Systems, 2012 HRTO 777 at para. 10. However, in Lambe v. OMERS Administration, 2010 HRTO 2200, at para. 28, the Tribunal found that the last incident of discrimination was not the applicant's termination date, but rather the date that he began to receive pension benefits, approximately four years after his termination and approximately six years before he filed his Application.
18Having considered this matter, I find that there is no merit to the applicant's submission that there was continuing discrimination and/or a "series of incidents" when the respondents continued to not offer him work for a period of one year and/or when it filled any vacant positions with other candidates. This is so because I find that the employment relationship ceased on April 18, 2012. As of that date, which is the date of separation, the applicant knew that he would not be getting any more work from the respondents. In light of the fact that the applicant immediately called the HRLSC to get advice because he believed that the termination of his employment was discriminatory, the applicant could not have held any reasonable expectation that he would be receiving any more work from the respondents.
19The applicant clearly indicated in the Application that the last incident of discrimination occurred on April 18, 2012. I find that this is the date of the last incident of alleged discrimination and that the Application was filed one year beyond the statutory deadline.
Good Faith
20The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.
21In this case, the applicant seeks to rely on advice that he allegedly received from the HRLSC. The Tribunal has previously held that, in certain circumstances, if an applicant relies on legal advice provided by legal counsel to his/her detriment then this may constitute good faith. See, Patterson v. Mississauga (City), 2012 HRTO 598 at paras. 21 to 23.
22In this case I find that the applicant failed to satisfy me that he exercised due diligence in the pursuit of his rights under the Code. The advice that the applicant allegedly received on April 19, 2012, whether it was accurate or not, is irrelevant because the applicant knew on March 4, 2013, that he had approximately six weeks left to file a timely Application with the Tribunal. This is information that he did not provide to the Tribunal until the preliminary hearing.
23The applicant could have filed a timely Application at that time had he turned his mind to the matter. Though the applicant states that he was busy with school and taking care of his family, this is not a reasonable explanation for this delay. This is so especially for an applicant who used to practice as a lawyer and was studying to be a paralegal, and who must be presumed to understand the significance of a limitation period and is capable of initiating a legal proceeding. The applicant has not provided an acceptable good faith explanation for his failure to file a timely Application between March 4, 2013 and April 18, 2013.
24The fact that the applicant had to go Pakistan many months later in November 2013 is also not a good faith explanation for the delay. Though the applicant says he could not file the Application in Pakistan, in fact he did so with the assistance of his nephew.
25Having considered the matter, I find that the applicant failed to exercise diligence with respect to the filing of the Application and he has failed to provide me with a reasonable good faith explanation for the delay.
26The Tribunal finds that the applicant has not established that the delay in filing the Application was incurred in good faith and it is not necessary for me to address the issue of prejudice.
ORDER
27The Application is dismissed.
Dated at Toronto, this 27th day of February, 2015.
"Signed by"
Geneviève Debané
Vice-chair