Boutahar v. Licence Appeal Tribunal, 2015 HRTO 30

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wahed Boutahar Applicant

-and-

Licence Appeal Tribunal Respondent

DECISION

Adjudicator: Alison Renton Date: January 9, 2015 Citation: 2015 HRTO 30 Indexed as: Boutahar v. Licence Appeal Tribunal

1This Application was filed on April 28, 2014, and alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed, family status, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant states that he is a member of Ontario Public Service Employees Union (“OPSEU”). The Application has not been sent to the respondent for Response.

2In the narrative, the applicant set out a chronology from August 30, 2010 to March 1, 2013, with allegations about discrimination and a poisoned work environment in his work environment. He asserts that he was reprised against for supporting another employee. The applicant identified March 1, 2013 as the last date upon which the Application was based. The applicant also stated that he had filed a complaint under the Ontario Public Service’s (“OPS”) Workplace Discrimination and Harassment Prevention (“WDHP”) policy which was investigated and recently completed. The investigation, he stated, was employer-driven and served to further victimize him by subjecting him to a biased investigation, which worsened his physical and mental health and deepened his mistrust in his employer’s good faith. With the exception of one issue, the investigation did not support the applicant’s allegations.

3By letter dated June 30, 2014 to the applicant, the Tribunal noted that the Application may be outside the Tribunal’s jurisdiction because it was filed more than a year after the last incident of discrimination described in the Application and may not have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. The Tribunal directed the applicant to file submissions about the apparent delay.

4The applicant filed submissions. He also filed four WDHP Investigation Reports, each dated January 17, 2014, and totalling over 100 pages, as well as an investigator’s response, and stated that the investigation was a “long protracted process” which exacerbated his medical condition. He submitted that he received a copy of the final report on April 8, 2014, and it was only then that he believed he was in a position to file his application as the flawed and employer-driven process had concluded. He stated that he believed that his mental health played a role in clouding his judgment to file a human rights application in conjunction with the WDHP complaint and alleged that the WDHP process was deliberately stretched out in an attempt to deny him the opportunity to seek redress from the Tribunal.

5Following theses submissions, the Tribunal issued a Case Assessment Direction (“CAD”) in which it stated that it required further submissions in relation to the potential delayed filing of the Application and whether there was a good faith explanation for the delay. The Tribunal specifically required further details about the applicant’s claim that his mental health contributed to a delay in filing his Application beyond what he had already submitted and directed him to file any medical documentation upon which he was relying in support of this explanation.

6In addition, the Tribunal directed the applicant to file submissions addressing when he learned about the results of the WDHP investigation, in the light of the draft responses that were attached to the investigation reports, noting the date of the investigation reports being January 17, 2014, as well as his January 7, 2014 email. From the January 7, 2014 email, it appeared that the applicant had contacted a lawyer with respect to his complaint and the Tribunal directed him to file submissions about doing so.

7The Tribunal set out a timetable by which the applicant was to file additional submissions and material. It stated that if the applicant did not file the additional submissions as directed, the Tribunal would decide the timeliness issue based upon the material that was already filed. The applicant has not filed the submissions as directed, has not communicated further with the Tribunal, and the time for doing so has elapsed.

Law and Analysis

8Sections 34(1) and (2) of the Code provide:

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 subsection 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.

9Section 34(1) is a limitation period established under the Code. The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

10Under 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, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121; and Furtney v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 1343.

11In this case, although the applicant makes comments about the investigation, including the way it was conducted, the essence of his Application, as noted in the narrative, is about the harassment and discrimination he alleges he experienced in his workplace. The allegations in his narrative end as of March 1, 2013. Accordingly, the Application should have been filed by March 1, 2014. Instead, it was filed on April 28, 2014, and which is outside the one-year limitation period under section 34(1) of the Code. Accordingly, the Tribunal needs to determine whether or not the applicant has a good faith explanation for the delay in filing his Application.

12The applicant says that after filing his WDHP complaint, he was shuffled between a number of WDHP advisors and forced to retell his story with each new WDHP advisor. An initial investigator was named, but another investigator conducted the investigation. The applicant asserts that the long, protracted process exacerbated his mental health and that his mental health clouded his judgment to file a human rights application along with the WDHP complaint.

13While the Tribunal accepts that a delay may be in good faith because of an applicant’s medical condition, it has consistently ruled that it requires medical evidence that the disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code. See, for example, Forde v. Avon Maitland District School Board, 2011 HRTO 1664, and the cases cited therein at para. 39. In this case, and despite the direction in the CAD that he do so, the applicant has provided no medical documentation to support his assertion that his mental health was affected such that he could not file an application in a timely manner. He has not filed any medical documentation substantiating that his mental health allowed him to proceed with the WDHP complaint, but not file an application with the Tribunal. Accordingly, the applicant’s claim that his mental health essentially prevented him from filing a timely Application, without supporting medical documentation or further details, is not a good faith explanation for his delay in filing his Application.

14In this situation, the applicant filed WDHP complaints with the same allegations as those in his Application. He confirms that the WDHP complaints were investigated, although he takes issue with their findings. He filed with the Tribunal copies of the four investigation reports. The applicant asserts that the WDHP process was deliberately stretched out in an attempt to deny him the opportunity to seek redress from the Tribunal, but has not pointed to anything in support of his assertion. While being a member of OPSEU, there is no information that he filed a grievance pertaining to the alleged discrimination he was experiencing in the workplace. In each of the investigation reports, it identifies other options that employees have to raise their allegations, including filing a grievance under their applicable collective agreement and applying to the Tribunal.

15Efforts to pursue one’s rights in other areas or forums without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2) of the Code. See Gagne v. Maximum Mining, 2010 HRTO 689 at para. 12. It is clear that the applicant filed WDHP complaints which were investigated based upon the four investigation reports that he filed with the Tribunal. Apart from his statement that his mental health condition was exacerbated because of the WDHP investigation, the applicant has not made any submissions about how he could pursue his WDHP complaints and yet not file his Application. From a review of the materials that the applicant filed, it appears that the applicant was given draft reports in November 2013, to which he filed responses, apparently before January 7, 2014. He did not file any submissions setting out why he could not file his Application following the draft reports or following his draft responses.

16Furthermore, in the applicant’s January 7, 2014 email to an individual with an Ontario government email address, he states that he contacted a lawyer about his WDHP complaints. Although it is unclear whether the applicant had a comprehensive discussion with the lawyer, the applicant has not addressed why he could contact a lawyer about the WDHP complaints and not file a timely Application with the Tribunal.

17Finally, the applicant has not provided any submissions about why he could not file an Application once the final WDHP investigation reports were issued, as they are dated January 17, 2014, until April 28, 2014, when he filed his Application. There is no information to indicate that the applicant received the final reports in April 2014, beyond his statement. Even if he did receive the January 17, 2014 investigation reports in April 2014, given the lack of supporting medical documentation, the fact that he was pursuing his rights under the WDHP policy, and had contacted a lawyer by January 2014, there is no good faith explanation as to why his Application is untimely.

18Accordingly, the Application is outside the Tribunal’s jurisdiction as it was filed outside the one-year limitation period in section 34(1) of the Code and the applicant has not provided a good faith explanation for the delay. The Application is dismissed.