HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christine Baughman
Applicant
-and-
The Beer Store
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Baughman v. The Beer Store
WRITTEN SUBMISSIONS
Christine Baughman, Applicant
Marcus A. Lennox, Counsel
Introduction
1The applicant filed an Application on June 28, 2016 alleging discrimination with respect to employment because of disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On August 26, 2016, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) for delay directing the applicant to file written submissions regarding this issue. The applicant filed written submissions in response to the NOID on September 12, 2016.
applicant’s submissions
3The applicant alleges that she was sexually, verbally and physically harassed between 2002 and 2009 at her place of work by a co-worker who was also at times her supervisor. The applicant pursued a claim for entitlement under the Workplace Safety and Insurance Act, 1997 (“WSIA”) with the Workplace Safety and Insurance Board (“WSIB”) and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The grounds of her claims under the WSIA were sexual, verbal and physical harassment at the place of work resulting in acute or traumatic mental stress. After a multi-year appeal process, the WSIAT determined that the “harassment” did result in a disabling condition of chronic mental stress, but that the condition was not acute or traumatic mental stress and not a compensable injury under the WSIA.
4As a result of the denial of her WSIA claim, the applicant is now pursuing the same claim and remedies within the human rights regime. The applicant maintains that the WSIA and its administrative bodies take precedence over any other forum in respect of injuries arising out of, and in the course of employment. The applicant argues that she could not have pursued an application before this Tribunal if she were pursuing essentially the same claim before the WSIB and WSIAT.
5The applicant argues that she was acting in good faith in failing to file an application before this Tribunal. In addition, she maintains that the respondent was involved in the WSIA process from the beginning and would not be prejudiced by the passage of time.
decision and analysis
6Section 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.
7Section 34 of the Code provides that an Application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events.
8The WSIAT decision does not constitute an incident as described in section 34(1). I find that the relevant incidents to which the Application relates occurred between 2002 and 2009 and the Application does not meet the requirements of section 34(1). See Thomas v. Toronto Transit Commission, 2009 HRTO 1582 (Thomas).
9The issue I must therefore consider is whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice.
10I first consider whether the delay was incurred in good faith. The Tribunal has found that the pursuit of WSIA benefits does not justify a failure to file a human rights application in a timely manner. There was nothing to prevent the applicant from filing the Application in a timely manner. Absent a reasonable explanation for the delay, I cannot conclude that the delay was incurred in good faith. See Thomas, above.
11The Tribunal has also found that ignorance of the law is no excuse in the context of delay in the initiation of a human rights application. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held that a delay may be found not to have been incurred in good faith where a party simply says that they were not aware of their rights, and made no inquiries about options for pursuing their rights.
12I find that the applicant has not met the onus to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code.
13The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Consequently, it is not necessary to determine whether the respondent has demonstrated substantial prejudice as a result of the delay.
14In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code.
15The Application is dismissed.
Dated at Toronto, this 14th day of October, 2016.
“Signed By”
Josée Bouchard
Vice-chair