Jing Huang v. Bruce Genno, 2015 HRTO 473

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jing Huang

Applicant

-and-

Bruce Genno

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: April 14, 2015

Citation: 2015 HRTO 473

Indexed as: Huang v. Genno

WRITTEN SUBMISSIONS

Jing Huang, Applicant

Self-represented

Bruce Genno, Respondent

No one appearing

1This is an Application filed on April 7, 2014 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, including sexual harassment.

Background

2On February 6, 2015, the Tribunal held a case management conference call with the applicant to address a number of procedural issues in light of the fact that the respondent did not participate in this proceeding. See Huang v. Bruce Genno, 2014 HRTO 1777, dated December 11, 2014.

3The incidents on which the Application is based occurred more than one year before the applicant filed the Application. The most recent incident is alleged to have occurred on March 9, 2013. During the conference call, I asked the applicant if she wanted to make further submissions about the issue of delay, i.e., explaining why she waited to file her Application. The applicant stated that she would rely on the submissions included in the Application. In a Case Assessment Direction dated February 12, 2015, the Tribunal offered the applicant an opportunity to make further written submissions explaining her delay in filing the Application. The filed written submissions on March 3, 2015.

The Applicant’s Submissions

4The applicant submitted that she first prepared the Application in September 2013 and submitted it to the Human Rights Legal Support Centre (the “Centre”) for review. The applicant stated that she had a telephone interview with the Centre on October 2, 2013 to discuss the Application. The applicant submitted she originally named her employer as an organizational respondent and did not name an individual respondent because the incidents in question occurred at work. According to the applicant, the Centre advised her that there was “nothing much I can do” because the employer had dismissed the individual respondent. Consequently, the applicant did not file the Application at that time. The applicant also explained that the incidents in question were subject to criminal proceedings and she thought there would be a conflict if she filed the Application while the criminal matter was in progress. The applicant states that she spoke to a social worker in April 2014 who identified her error in naming only an organizational respondent. The applicant submitted that she contacted the Centre and received advice that she could file the Application against the individual respondent and that there would be no conflict with the criminal proceeding. The applicant submitted that she had not been aware of the time limit for filing an application, but filed the Application the next day after speaking with the Centre. The applicant submitted that her first language is not English, which caused misunderstandings, and, given her lack of knowledge of the law and legal procedures, she made mistakes.

Analysis and Decision

5Section 34 (1) and (2) of the Code reads 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.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

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, 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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548 at paragraphs 12 and 14. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

8The applicant clearly felt that the individual respondent’s actions violated her human rights and she took initial steps to enforce her rights through an Application to this Tribunal against her employer. The applicant chose not to pursue the Application because she received advice that proceeding against her employer was not worthwhile. The applicant delayed in filing an Application against the individual respondent because she did not know that she could file an application while the related criminal matter was in progress or that there was a one-year time limit for filing applications to the Tribunal. In my view, the applicant had every reason to make inquiries about her rights and how to enforce them in these circumstances. However, she made no such inquiries until after the one-year deadline had expired, apparently while she waited for the criminal proceeding to conclude. In my view, the applicant did not exercise due diligence in pursuing her human rights claim and I find that her explanation does not amount to a good faith explanation for her delay. Having found that the applicant has not established that the delay in filing the Application was incurred in good faith, I need not address the issue of prejudice.

9The Application is dismissed.