HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shelley Ann Velichka
Applicant
-and-
Sears Canada Incorporated
Respondent
DECISION
Adjudicator: Keith Brennenstuhl
Date: May 13, 2015
Citation: 2015 HRTO 625
Indexed as: Velichka v. Sears Canada Incorporated
APPEARANCES
Shelley Ann Velichka, Applicant
Wendy Jones, Representative
Sears Canada Incorporated
Shana French, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On January 15, 2015 the Registrar issued a notice, which directed that a preliminary hearing by conference call be held to determine whether the Application should be dismissed on the basis of delay. A preliminary hearing by conference call was held on April 27, 2015.
Background
3The applicant was employed by the respondent as a sales associate. She was employed by the respondent from October 2007 until May 28, 2010, at which time her employment was terminated.
4While employed by the respondent, the applicant was a member of the union and her employment was governed by the terms of a collective agreement.
5In November 2008 the applicant commenced a medical leave of absence as a result of injuries she sustained in a motor vehicle accident which occurred at some point prior to commencing employment with the respondent. The applicant remained on medical leave until her termination in May 2010.
6In June 2010 the union filed a grievance on behalf of the applicant alleging that the applicant’s termination was unjust and that the respondent “is also in violation of the human rights code.” The grievance was not referred to arbitration and appears to have been abandoned by the union.
7The Application with the HRTO was filed on March 24, 2014, almost 4 years after the termination of the applicant’s employment with the respondent.
analysis
Delay
8Pursuant to s. 34 of the Code, where an application is filed more than one year after the incident or the last incident in a series of incidents to which the application relates, the Tribunal has no jurisdiction to deal with the application unless it is satisfied the application was incurred in good faith and no substantial prejudice would result to any person affected by the delay. Section 34 reads:
34(1) If a person believes that any of his rights under Part 1 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 in 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.
9Subject to s. 34(2) of the Code, the timeline set out in s. 34(1) is mandatory. This timeline is consistent with the policy objective underlying the Code that human rights claims be dealt with expeditiously. Accordingly, an individual must act with all due diligence and file his or her application within one year of the incident of discrimination. (See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.)
10The applicant does not dispute that her Application was filed more than one year after the termination of her employment. She claims, however, that there is a series of incidents of a human rights violation following her termination and that the last of these occurrences falls within the prescribed limitation period for the filing of an application.
11As stated, the Application was filed on March 24, 2014. In order for an Application to be timely under s. 34 of the Code, it must relate to events that took place after March 24, 2013. Therefore the first issue that the Tribunal must determine is the date of the last incident of discrimination.
12The respondent takes the position that the last date of alleged discrimination occurred on May 28, 2010 when it communicated to the applicant that her employment was terminated. Therefore, the respondent’s position is that the Application was filed almost 4 years beyond the statutory limit and that it is untimely.
13The applicant asserts in the Application that a series of incidents continued until January 2014, when the union returned to the applicant her grievance file.
14The applicant also made a number of other submissions, including that the respondent committed a series of incidents when it continued to maintain the applicant’s termination from employment during the grievance process, and that these constitute separate violations of the Code amounting to a series of incidents.
15First, the Tribunal has repeatedly found that on-going discussions in the attempt to resolve an outstanding dispute does not extend the time-period prescribed by s. 34(2). In Longtin v. Great-West Life Assurance Company, 2011 HRTO 244, the applicant filed a human rights application against her former employer 30 months after she was terminated. During that 30 month period the applicant was in constant contact with her former employer pursuing a reversal of her termination. The Tribunal considered whether the former employee’s discussions during the 30 month period constituted further acts of discrimination such that the application relating to her termination could be timely. The Tribunal found that the former employer’s contact with the applicant during the 30 months after her termination could not be separate acts of discrimination. The Tribunal stated at paragraph 18:
On the face of the facts in this instant case, the applicant continues to not be employed by Great-West and, as a result of that status, continues to not have access to health and pension benefits. That is, she continues to experience the consequences of what she alleges is the discriminatory act of terminating her employment. Her attempts to dispute that termination, and the company’s decision to stand by its original decision, cannot be said to be further acts of discrimination.
16In my view, the applicant’s allegations concerning her contact with the respondent following her termination relate to the termination and do not establish any further acts of discrimination such that there has been a series of incidents within the meaning of s. 34(1).
17In any event, it would appear that communication between the respondent and the applicant did not continue beyond 2011. Apparently there were ongoing discussions between the respondent and the union beyond 2011 however the applicant cannot rely on any of the union’s actions or inactions to extend the last incident of discrimination with respect to the respondent’s conduct.
18I find that the last allegation of discrimination as it relates to the respondent occurred on May 24, 2010, when the applicant was advised by the respondent that her employment was terminated.
Good Faith
19The applicant claims that the delay in filing her Application was incurred in good faith and that, accordingly, her Application is within the Tribunal’s jurisdiction.
20In establishing good faith, the Tribunal has placed a fairly high onus on applicants to provide a good faith explanation (See, for example, Murray v. Craigwood Youth Services, 2011 HRTO 677). The applicant must show something more than the absence of bad faith: she must show the she acted with due diligence.
21The applicant does not allege that she was not aware of her right to file an application with the Tribunal. At the time the grievance was filed in June 2010, the applicant and her union alleged that the respondent violated the Code when it terminated the applicant. The grievance letter is attached to the Application and it states in part: “[t]he company is also in violation of the human rights code”.
22In any event, the Tribunal has held that where an applicant has demonstrated “efforts to protect her rights in the workplace” in the past, for instance by filing a grievance, an applicant will have significant difficulties showing that her failure to file a timely application was incurred in good faith. (See, for example, Sharma v. Securitas Canada Ltd., 2013 HRTO 176).
23Rather she alleges that she was relying on the union to pursue the grievance and that it is this reliance which supports her allegations that the untimely Application was filed in good faith.
24The Tribunal has found, however, that the fact that an applicant is pursuing other legal remedies or processes is not generally a valid or good faith reason for a delay in filing a human rights application and that an applicant can file a timely application under the Code while the applicant pursues statutory and contractual rights elsewhere.
25In Cartier v. Northeast Health Centre, 2009 HRTO 1670, the applicant submitted that she could not file her human rights application until she had exhausted her attempts at redress through a duty of fair representation complaint at the Ontario Labour Relations Board (“OLRB”) and the arbitration hearing held in regard to her termination grievance. The Tribunal held that the applicant’s delay in filing her human rights application was not incurred in good faith because the applicant could have nonetheless filed her application while other proceedings were ongoing and the Tribunal could have deferred the application to the other proceedings. The Tribunal explained at paragraph 234:
…[T]he applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for the delay in filing an Application.
26In my view, the applicant was required to file an application within the timelines under the Code while she pursued her grievance. Nothing prevented the applicant from filing an application within the timeline and nor was she unable to do so. Having an outstanding grievance is not a good faith explanation for the late filing of the Application.
27I find that the applicant has not established that the delay in filing the Application as against the respondent was incurred in good faith and it is not necessary for me to address the issue of prejudice.
CONCLUSION
28For the above reasons, the Application is dismissed because it was filed outside the limitation period provided for in the Code and the application has not established a good faith reason for the delay.
Dated at Toronto, this 13^th^ day of May, 2015.
Keith Brennenstuhl
Vice-chair```