Morris v. The Llewellyn Group Inc., 2016 HRTO 1045

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Morris

Applicant

-and-

The Llewellyn Group Inc.

Respondent

DECISION

Adjudicator: Mark Hart

Date: August 8, 2016

Citation: 2016 HRTO 1045

Indexed as: Morris v. The Llewellyn Group Inc.

APPEARANCES

Peter Morris, Applicant

Self-represented

The Llewellyn Group Inc., Respondent

Ian Mitchell, Representative

1This is an Application filed on November 20, 2015 alleging discrimination with respect to employment because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant was employed with the respondent company as a security guard. His employment was terminated in December 2005, almost ten years prior to the filing of the Application. The applicant alleges that he only discovered that he was fired because of his race when he received certain documents from the Ontario Labour Relations Board (“OLRB”) in early March 2015.

3After seeking submissions from the applicant, the Tribunal directed that a preliminary hearing be held to hear oral submissions from the parties on the issue of whether this Application should be dismissed for delay.

4The preliminary hearing was held via teleconference on May 10, 2016, at which time I heard the parties’ oral submissions.

5Section 34 of the Code states:

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 incidents to which the application relates; or

(b) if there was 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 onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

7The allegation raised in the Application is that the applicant was terminated from his employment with the respondent company because of his race in violation of his rights under the Code. The termination of the applicant’s employment occurred in December 2005, almost ten years before the Application was filed. Obviously, this is well beyond the one year time period for filing an Application under s. 34(1) of the Code.

8The applicant alleges that he only became aware that his employment was terminated because of race when he received correspondence from the OLRB in early March 2015. Following the termination of his employment, the applicant had filed a complaint with the Employment Standards Branch over unpaid wages. This complaint was dismissed based on what the applicant regards as “forged documents.” The applicant appealed the dismissal of his complaint to the OLRB, which scheduled a hearing sometime in 2007. The applicant did not appear for the hearing, and his appeal was dismissed. As best I can understand, the applicant alleges that he failed to receive notice of the hearing. While the OLRB decisions are not before me, the applicant stated at the teleconference hearing that there are OLRB decisions dismissing his appeal dated July 25, 2007, October 17, 2007 and December 13, 2007.

9The applicant then filed a complaint with the Ombudsman’s Office sometime in 2007 based upon how he alleges he was treated by the OLRB. He states that he received an e-mail from the Ombudsman’s Office dated October 22, 2007 rejecting his complaint. The applicant states that he then contacted the office of his local Member of Provincial Parliament in April 2008. In 2009, the applicant states that he commenced a civil action in Small Claims Court which he subsequently withdrew based upon the Judge’s assessment that his case would not succeed.

10The applicant states that the next relevant incident in this matter occurred in early March 2015 when he received a letter from OLRB counsel. This letter has not been filed with the Tribunal, and so what specifically caused this letter to be sent out at that time is unclear. The applicant states that enclosed with this letter was a document on the letterhead of the respondent company stating that he had been fired because he was a “fucking ethnic.” The applicant states that this letter is signed by an employee of the respondent company, who was identified by the respondent as the company’s payroll clerk. This letter also has not been filed with the Tribunal. The respondent states that its payroll clerk had no involvement with the termination of the applicant’s employment, and questions the veracity of this letter.

11The applicant asserts that, prior to receiving this letter in early March 2015, he had no reason to believe that his employment had been terminated because of his race, which was only discovered in early March 2015. This allegation engages the doctrine of discoverability, which has been considered by this Tribunal as an element of assessing whether the delay in filing an Application has been incurred in good faith.

12With respect to the principle of discoverability, the Tribunal has observed as follows in Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23:

What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

13In the instant case, the applicant asserts that, prior to receiving the letter in early March 2015, he had no reason to believe that his employment had been terminated because of his race. In that respect, he argues that this is not a case where he had previously believed that his Code rights had been violated and only subsequently discovered evidence to support this belief. Rather, he argues that it was only when he received the letter in early March 2015 that he for the very first time had reason to believe that there had been a violation of his Code rights.

14This Tribunal has consistently held that ignorance of one’s rights under the Code generally is not a sufficient basis to provide a reasonable explanation for delay in filing an Application: see for example Lafleur v. Kimberley Scott, 2009 HRTO 1141. In addition, the Tribunal’s caselaw establishes that an applicant is under an obligation to make reasonable and diligent inquiries about their rights: see Lafleur, above. This is consistent with the statement in Miller, above, that an applicant must act with due diligence when they seek to pursue a human rights claim.

15In the context of the discoverability principle, an applicant similarly cannot just sit on his rights under the Code, but is under an obligation to make reasonable and diligent efforts to discover whether his Code rights have been violated. In the instant case, the applicant asserts that he made efforts through the OLRB process, the Ombudsman’s Office and his civil action to obtain all documents in the OLRB’s possession, but did not obtain the letter supporting that his termination was because of his race until early March 2015. However, I note that, on the basis of the applicant’s own submissions, the last effort he made to obtain documents from the OLRB was in the context of the civil action, which he withdrew sometime in 2009. Thereafter, the applicant’s own submissions indicate that nothing further occurred until early March 2015, some six years later, when for reasons unknown he received the letter from OLRB counsel. As a result, it appears that during this intervening six year period, the applicant took no steps to make any further inquiries regarding the reason for the termination of his employment. In these circumstances, I find that the applicant has failed to demonstrate that he made reasonable and diligent efforts to discover the reason for the termination of his employment, and therefore find that his delay in filing the Application was not incurred in good faith.

16Finally, I note that in correspondence to the Tribunal subsequent to the filing of his Application, the applicant alleged for the first time that in early March 2015, he contacted someone he alleges was employed by the respondent company, who is alleged to have said “you’re a fucking ethnic, we don’t hire fucking ethnics.” The applicant cannot identify this individual by name, but states that he called a phone number which was identified on the internet as a number for the respondent company. The respondent representative states that, due to personal circumstances, he discontinued the business in the spring of 2014. While he states that the phone number called by the applicant sounds like an old phone number formerly used by the respondent company, this number has not been actively in use by the company since the spring of 2014 and the respondent company has had no employees since that time.

17As previously stated, this is not an allegation set out in the Application. The applicant also has not filed any request to amend his Application to include this allegation. Further, even if I were to consider this allegation for the purpose of this preliminary hearing, it is not clear to me that it constitutes a further incident of alleged discrimination within the meaning of s. 34(1) of the Code. The applicant states that, during this phone conversation, he advised the unknown person with whom he was speaking that he had been fired ten years previously and had now found out that it allegedly was because he was a “fucking ethnic”, and he requested payment of $50,000. He states that it was at this point that the unknown person with whom he was speaking “went off” on him, and said, “you’re a fucking ethnic, we don’t hire fucking ethnics, we’re not paying you $50,000.” At most, this could be regarded as an assertion by the applicant that he had experienced discrimination ten years prior and was demanding compensation, and a refusal to provide any such monetary compensation. In my view, this does not constitute an independent alleged incident of discrimination that is separate and apart from the termination itself.

ORDER

18Accordingly, for all of the foregoing reasons, the Application is dismissed for delay.