Biniam Icallo v. Oak Leaf Confections and Ion Leoveanu, 2015 HRTO 742

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Biniam Icallo Applicant

-and-

Oak Leaf Confections and Ion Leoveanu Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: June 5, 2015 Citation: 2015 HRTO 742 Indexed as: Icallo v. Oak Leaf Confections

APPEARANCES

Biniam Icallo, Applicant Self-represented

Oak Leaf Confections and Ion Leoveanu, Respondents Christine Ashton, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis of jurisdiction because it is untimely.

2The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"):

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.

BACKGROUND

3The applicant was employed by Oak Leaf Confections (the "organizational respondent") in general maintenance. Ion Leoveanu (the "individual respondent") was the plant manager. The applicant was a member of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (the "union"). The terms and conditions of the applicant's employment were governed by a collective agreement between the organizational respondent and the union.

4The applicant began an approved medical leave on April 15, 2013. He submitted a doctor's note to the organizational respondent, which indicated that he would be off work for one month. The applicant did not return to work on May 15, 2013, and did not contact the organizational respondent. On May 21, 2013, the organizational respondent sent the applicant a letter, which informed him that his employment was terminated because he was considered to have abandoned his employment.

5On July 18, 2013, the applicant attempted to return to work, but was not allowed to do so because of the termination. The applicant then contacted his union, who grieved his termination. On August 7, 2013, the applicant and a union representative met with the individual respondent and a Human Resources ("HR") representative. The union's request that the applicant be reinstated into his position was denied. The union did not refer the applicant's grievance to arbitration.

6On June 13, 2014, the applicant filed an Application under s. 34 of the Code, which alleged that the respondents discriminated against him with respect to employment because of his color, place of origin, ethnic origin, and disability. Specifically, he alleged that the individual respondent harassed and discriminated against him during his employment because, he is Black and from Ethiopia, and the organizational respondent terminated his employment when he was too sick to communicate with it.

7In section 7(c) of the Application ("What was the date of the last event?"), the applicant wrote: "16-06-2013". In section 7(d) ("If you are applying more than one year from the last event, please explain why :"), he left the answer space blank.

8On August 29, 2014, the respondents filed a Response, which denied the allegations of discrimination. The respondents denied that the individual respondent harassed and discriminated against the applicant during his employment, or that the organizational respondent terminated the applicant's employment because he had a disability. Rather, the respondents stated, the applicant's employment was terminated because he failed to return to work or contact the organizational respondent after his medical leave ended.

9On September 30, 2014, the Tribunal issued a Notice of Hearing, which informed the parties that the hearing was scheduled for February 23 and 24, 2015.

10On January 9, 2015, the respondents filed a Request for Summary Hearing, which requested, among other things, that the Application be dismissed because it is untimely. The applicant did not file a Response to the Request.

11On February 23, 2015, the hearing took place as scheduled. In response to my questioning, the applicant stated that he never received the respondents' Request for Summary Hearing. I gave the applicant the benefit of the doubt that he had not received the Request.

12I directed the parties to provide oral submissions on the delay issue, which specifically addressed the following:

1. When did the last alleged incident of discrimination occur?

2. If the last alleged incident of discrimination occurred outside the one-year statutory time limit, was the applicant's delay in filing his Application incurred in good faith?

3. If the last alleged incident of discrimination occurred outside the one-year statutory time limit, will substantial prejudice result to any person affected by the delay?

13The parties then made their oral submissions. In view of the fact that the applicant was self-represented and was not aware that the respondents had raised the delay issue until the hearing, I provided him with the opportunity to supplement his oral submissions with written submissions. Following the hearing, the parties filed written submissions.

ANALYSIS

14The first issue to determine is when the last alleged incident of discrimination occurred.

15In their submissions, the respondents stated that the last alleged incident of discrimination occurred on May 21, 2013, when the organizational respondent terminated the applicant's employment.

16In his submissions, the applicant stated that the last alleged incident of discrimination occurred on August 7, 2013 when, as part of the grievance process, he and his union representative met with the individual respondent and an HR representative, and his request for reinstatement to his position was denied. In the alternative, he stated, the last alleged incident of discrimination occurred on July 18, 2013, when he reported to work, and the organizational respondent confirmed that it had terminated his employment.

17I find that the last alleged incident of discrimination occurred on May 21, 2013, when the organizational respondent terminated the applicant's employment. I disagree with the applicant's submission. The Tribunal has held that an employer's decision to maintain the termination of an employee's employment during a grievance procedure does not constitute a further alleged incident of discrimination. See, Mu v. Cargill Foods, 2011 HRTO 846 at para. 28. Furthermore, I do not see how the organizational respondent's confirmation of the termination of the applicant's employment can constitute a further alleged incident of discrimination.

18Given that the last alleged incident of discrimination occurred on May 21, 2013, but the Application was not filed until June 13, 2014, I find that the Application was filed approximately three weeks and two days outside the one-year time limit in s. 34(1) of the Code.

19The second issue to determine is whether the applicant's delay in filing his Application was incurred in good faith.

20In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

21In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:

To establish that delay in pursuing one's rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one's rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that "failure to act in ignorance of one's rights may, in some circumstances, amount to "good faith". However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights." (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

22In his submissions, the applicant stated that any delay in filing his Application was incurred in good faith for three reasons. First, he stated, he had an acute stress disorder that impaired his judgment with respect to pursuing legal remedies to address the termination of his employment. He was better when he reported to work on July 18, 2013, but the termination of his employment added a further burden on his health, and it was only when he became better, and understood the consequences of the termination, that he went to see a lawyer.

23Second, the applicant stated, the union's delay in pursuing his grievance resulted in the delay in filing his Application. After the August 7, 2013 meeting, when he and his union representative met with the individual respondent and an HR representative, and his request for reinstatement to his position was denied, the union had further discussions with the organizational respondent for about two months. In October 2013, he hired his own lawyer, but when the lawyer contacted the organizational respondent, the lawyer was told that the union was still pursuing his grievance. His lawyer then told him he could not take on the case because of the union's involvement. When he then contacted his union, he was told that his representative was deceased, so he went back to the lawyer.

24Third, the applicant stated, although he was initially ignorant about his rights under the Code, he did make inquiries with a lawyer about the best way to address the termination of his employment. Notwithstanding his diligence, he did not know that he could claim a remedy under the Code until May 2014 when his lawyer advised him of the availability of such a remedy, and did not know that he could file an Application with the Tribunal until June 2014, when his lawyer advised him of such. He also did not know that there was a statutory time limit for filing an Application with the Tribunal.

25For the following reasons, I find that the applicant has not established that his delay in filing his Application was incurred in good faith.

26First, I do not accept that the applicant's delay in filing his Application was incurred in good faith because he had an acute stress disorder. Although the Tribunal accepts that a delay may be in good faith because of an applicant's disability, it has consistently ruled that it requires evidence that a disability was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. See, Dionne v. Toronto (City), 2011 HRTO 317 at para. 9. At best, the medical documents that the applicant filed in support of this argument indicate that his disorder prevented him from pursuing his legal rights under the Code until July 18, 2013, when he was able to return to work. Furthermore, following his unsuccessful attempt to return to work on July 18, 2013, he took steps that demonstrated that he was capable of pursuing his legal rights with respect to the termination of his employment. Specifically, between July and October 2013, he contacted his union, which grieved the termination of his employment; he and a union representative met with the individual respondent and an HR representative to request that he be reinstated; and he eventually hired his own lawyer. He continued to interact with both his union and his lawyer until he filed his Application.

27Second, I do not accept that the applicant's delay in filing his Application was incurred in good faith because of his union's delay in pursuing his grievance. In Cartier v. Northeast Mental Health Centre, above, the Tribunal stated at para. 23:

(…) The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the 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 fora 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 delay in filing an Application. [Emphasis added.]

28Third, I do not accept that the applicant's delay in filing his Application was incurred in good faith because his lawyer delayed in advising him about his rights under the Code. I found the applicant's account of what transpired between October 2013 (when he first consulted with the lawyer) and May/June 2014 (when his lawyer allegedly gave him advice about his rights under the Code for the first time) to be suspiciously vague. Most crucially, he did not particularize when in May 2014 his lawyer advised him of the availability of a remedy under the Code, which means that it is unclear whether it was before or after the one-year time limit in the Code. I found this particularly suspect in view of the fact that the applicant was meticulous in providing the specific dates of incidents that occurred in the weeks preceding and following the termination of his employment, which was a year earlier. At the end of the day, I did not find the applicant's account about his lawyer's delay in advising him about his rights under the Code to be sufficiently credible to satisfy me that his delay in filing his Application was incurred in good faith.

29In view of my finding that the applicant's delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

30The Application is dismissed.