Demaries v. Canadian Tire Corporation, 2015 HRTO 867

Human Rights Tribunal of Ontario

B E T W E E N:

Ross Demaries

Applicant

-and-

Canadian Tire Corporation

Respondent

DECISION

Adjudicator: David Muir

Date: June 29, 2015

Citation: 2015 HRTO 867

Indexed as: Demaries v. Canadian Tire Corporation

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 age. The Application was filed on May 6, 2015 and relates to the applicant’s dismissal from employment on October 30, 2013.

2On May 26, 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 because he was receiving “severance payments and did not want to have them stopped”.

5The applicant did provide information necessary to complete his Application but did not address the delay issue identified in the NOID and has indicated to the Tribunal that he does not intend to make any further submissions.

6Under 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.

7I find that the Application is out of time and it is plain and obvious that the applicant has plead no facts which would support a finding that the delay was incurred in good faith.

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 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.

9These 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. 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. The applicant must at a minimum provide a reasonable explanation for the delay.

10This Application is out of time. It was filed more than 19 months after the last alleged incident of discrimination. It falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

11In this case there is no indication of bad faith but in my view the applicant has not advanced a reasonable explanation for the delay. He says only that he was receiving severance and did not want to jeopardize that. I have assumed that the severance payments he refers to were from the respondent. However this is plainly not a reasonable excuse for the delay in filing this Application nor is it a good faith explanation for the delay.

12For these reasons I find that it is plain and obvious that this Application is outside of the jurisdiction of the Tribunal to decide and accordingly it is dismissed.