HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Diane Davidson
Applicant
-and-
Toyota Canada and John Hintgen
Respondents
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Davidson v. Toyota Canada
WRITTEN SUBMISSIONS
Diane Davidson, Applicant
Christopher Ward, Paralegal
Introduction
1This Application, filed on June 13, 2016, alleges reprisal and discrimination with respect to employment because of sex and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant alleges her employer, Toyota Canada, and her former supervisor, John Hintgen, discriminated against her by terminating her on March 3, 2015.
3On August 26, 2016, the Registrar issued a Notice of Intent to Dismiss the Application. The Notice directed the applicant to respond to the following issue by September 25, 2016:
- the Application was filed more than one year after the last incident of discrimination described in your Application and you do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”.
Applicant’s delay Submissions
4On September 23 and 28, 2016, the applicant provided reasons for not dismissing her Application for delay. She submits she showed due diligence by consulting a paralegal about her rights under the Code shortly after her termination.
5Her paralegal contacted the corporate respondent on May 6, 2015, and the parties discussed a possible resolution. In July 2015, the corporate respondent proposed a settlement. The applicant’s representative advised it was not acceptable, and the respondent did not respond even though the applicant’s representative followed up with the corporate respondent three times. He has heard nothing from the corporate respondent since August 10, 2015.
6The applicant completed her Application with the assistance of her representative in January 2016, and it was filed with the Tribunal on June 13, 2016.
Analysis and Decision
7The Tribunal may dismiss an Application without providing an opportunity for an oral hearing if the Tribunal does not have jurisdiction to deal with the Application. However, an application will only be dismissed at a preliminary stage, before it is served on the respondent, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121; and Furtney v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 1343.
8As stated in the August 26, 2016 notice, the Application was filed more than one year after the last incident of discrimination described in the Application.
9Section 34 of the Code states, in part:
(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.
10Section 34(1) is a limitation period established under the Code. If an applicant seeks to rely on untimely allegations, the applicant must establish, pursuant to subsection 34(2) that the delay was incurred in good faith, otherwise the Tribunal has no jurisdiction to deal with the allegations. The Tribunal considered the meaning of good faith in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 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). […] In Lutz v. Toronto (City), 2009 HRTO 1137 (“Lutz”), 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 inquiries about options for pursuing the alleged wrong.
11Having reviewed the Application, including the applicant’s submissions to the NOID, I find that it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction, and the applicant has not provided a good faith explanation for the delay in filing her Application.
12In this case, the Application was filed on June 13, 2016, and it is plain and obvious that the Application was filed more than one year after the last alleged incident of discrimination. As such, I must consider whether the applicant has established that the delay was incurred in good faith.
13The applicant states she showed due diligence by consulting a paralegal shortly after her termination, and engaging in settlement discussions through that paralegal. The applicant argues her due diligence includes attempting to resolve the issue before filing her Application.
analysis and decision
14The applicant provides no explanation for why she did not file her Application between August 10, 2015, when she last heard from the corporate respondent, and the one-year limitation period of March 2, 2016.
15In this case, the applicant knew her rights. She was represented by a paralegal beginning shortly after her termination. He helped her draft her Application approximately two months prior to the limitation period, but it was ultimately filed three months after the expiry of the limitation period. The applicant provides no reason other than that she was attempting to resolve the matter. However, it is clear that process broke down seven months prior to the limitation period.
16Accordingly, I find the applicant has provided no good faith explanation for the delay. It therefore is plain and obvious that the Application is outside the Tribunal’s jurisdiction as it was filed outside the one-year limitation period in section 34(1) of the Code and the applicant has not provided a good faith explanation for the delay.
ORDER
17The Application is dismissed.
Dated at Toronto, this 12th day of October, 2016.
“Signed by”
Dawn J. Kershaw
Vice-chair```