HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Celestin Abedi
Applicant
-and-
Hôpital Montfort
Respondent
DECISION
Adjudicator: David Muir
Date: March 23, 2015
Citation: 2015 HRTO 342
Indexed as: Abedi v. Hôpital Montfort
1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of ancestry, colour, ethnic origin, place of origin and race. The Application was filed on December 9, 2014 and relates to allegations culminating in the applicant’s dismissal on November 22, 2012.
2On January 21, 2015 the Tribunal issued a Notice of Incomplete Application and Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction.
3The NOID noted that from a review of the Application it appeared that it had been filed more than a year after the last incident of discrimination and that the applicant had not cited facts that constitute good faith within the meaning of section 34(1) of the Code.
4In his Application the applicant had indicated that he had not filed his Application in a timely manner at the urging of his wife who feared that his filing of it may have consequences for him in his new job with another employer. In the applicant’s response to the NOID the applicant added to this that when he was fired from this new position a year or so later that “he realized” that he should proceed to “denounce the discrimination he suffered at Montfort as well”.
5Under 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.
6I find that it is plain and obvious that the Application is out of time and the applicant has pleaded no facts which would support a finding that the delay was incurred in good faith.
7Sections 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 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.
8These provisions have been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
9This Application is out of time. It was filed just over two years after the last alleged incident of discrimination. It falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith.
10In this case there is no indication of bad faith but in my view the applicant has not advanced a reasonable explanation for the delay. The applicant relies on his spouse’s concern that a new employer might reprise against him for filing an Application against a prior employer. The applicant does not plead that he had reason to fear reprisal or allege any facts which would support such a claim. The claim of fear of reprisal appears little more substantial than any other potential applicant’s anxiety about the potential consequences of filing a human rights Application. In my view an applicant seeking to rely on a fear of reprisal as a good faith explanation for delay in filing an Application is required at a minimum to provide a reasonable basis to believe that reprisal was a real possibility. The few facts pleaded here fall far short of establishing a reasonable belief that reprisal was a real possibility.
11For all of these reasons I find that it is plain and obvious that this Application raises no issues under the Human Rights Code and must be dismissed.
Dated at Toronto, this 23rd day of March, 2015.
“Signed by” __________________________________
David Muir
Vice-chair