Bremner v. Toyota Motor Manufacturing, 2016 HRTO 1491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Seth Bremner

Applicant

-and-

Toyota Motor Manufacturing

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 22, 2016

Citation: 2016 HRTO 1491

Indexed as: Bremner v. Toyota Motor Manufacturing

APPEARANCES

Seth Bremner, Applicant

Self-represented

Toyota Motor Manufacturing Canada, Respondent

Ted Kovacs, Counsel

1This Application, filed on October 14, 2015 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability. The applicant alleges that the termination of his employment on October 10, 2014 amounted to discrimination because of disability.

2Sections 34(1) and 34(2) of the Code provide as follows:

(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.

3By Case Assessment Direction dated February 11, 2016, the Tribunal scheduled this matter for a preliminary hearing to determine whether it should be dismissed for delay. The Tribunal held the preliminary hearing on June 9, 2016 by teleconference.

4At the commencement of the hearing, I noted that there were no incidents of discrimination alleged to have occurred within one year of the filing date of the Application. Consequently, the Application does not come within the limitation period set out in sections 34(1)(a) and 34(1)(b). Therefore, the Tribunal can only deal with the Application if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay

submissions

5The applicant made the following submissions. He contacted a lawyer after his dismissal who agreed to assist him in filing an Application to the Tribunal. The lawyer wrote some letters to the respondent on the applicant’s behalf. The applicant missed some appointments with the lawyer to discuss his circumstances, but was eventually advised that the time for filing the Application had passed. The applicant acknowledged that the lawyer had said something about a one year time limit, but he thought that this was the deadline to take another step in the process. The applicant stated that he assumed that the lawyer would take care of the Application and that he would have filed it himself if he had known that a lawyer was not required. The applicant submitted copies of demand letters sent to the respondent on his behalf and the exchange of e-mail messages between him and his lawyer’s office.

6The respondent submitted, amongst other things, that the e-mail exchange between the applicant and his lawyer indicates that the applicant was advised of the one year time limit, but delayed in pursuing the Application until after the time limit had passed. In particular, the e-mail exchange showed that the applicant failed to attend appointments with his lawyer to discuss a human rights claim and that the lawyer’s office followed up with him in advance of the end of the limitation period.

Analysis and Decision

7The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 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 inquires about options for pursuing the alleged wrong.

8The applicant has not provided a good faith explanation for his delay in filing this Application. The records that the applicant submitted show that he contacted a lawyer to assist him with his dispute with the respondent shortly after he was dismissed. These records further show that he was advised about the limitation period in the Code. The applicant did not attend appointments with his lawyer to discuss an Application to the Tribunal and did not revisit the issue until after the limitation period had passed. The applicant “assumed” that his lawyer would file the Application, but gave no indication that he ever gave her instructions to do so. The applicant stated that he misunderstood the significance of the time limit. In these circumstances, the applicant had every reason to clarify the nature of the limitation period. Instead, he failed to move the matter forward until the time period had passed. In my view, the applicant did not act with due diligence and I am not satisfied that the delay in filing the Application was incurred in good faith. In the absence of good faith explanation, it is unnecessary to consider the issue of prejudice.

9The Application is dismissed for delay.