John Gonzales v. Bombardier Transportation Canada Inc., 2016 HRTO 1531

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Gonzales

Applicant

-and-

Bombardier Transportation Canada Inc.

Respondent

decision

Adjudicator: David Muir

Date: November 29, 2016

Citation: 2016 HRTO 1531

Indexed as: Gonzales v. Bombardier Transportation

1This is an Application filed on July 22, 2014 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of colour, ethnic origin, family status, marital status and race.

2In its Response (Form 2) the respondent argued that the Application should be dismissed due to delay it being filed more than one year after the last possible incident of discrimination.

3The applicant opposes the request to dismiss.

Decision

4In my view the Application should be dismissed.

5Sections 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.

6The final act of alleged discrimination by the respondent occurred on January 21, 2014 when he was dismissed from his employment. The Application was filed on May 25, 2015. Accordingly it is out of time unless the applicant establishes a good faith explanation for the delay. Section 34(2) provides that the Tribunal may proceed with an untimely Application where the applicant establishes a good faith explanation for the delay and established that there will be no substantial prejudice to any party. ( See Farwell v. Northumberland Services for Women 2010 HRTO 1126).

7The 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 Tribunal has interpreted these provisions of the Code as requiring that 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. The provision has 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.

8In this case the applicant argues that he filed a grievance after his dismissal but that process did not conclude until the end of May 2014. The applicant suggested that was a final act of discrimination but the applicant does not explain how the respondent confirming its prior decision and/or his bargaining agent not taking the grievance forward to arbitration could be considered a new act of discrimination by the respondent.

9The applicant also argues that he had difficulty in determining how to proceed although it appears that he made some effort to do so by making contact with the Ministry of Labour, the Human Rights Legal Support Centre on two occasions and the Canadian Human Rights Commission. In my view the applicant has failed to provide any explanation at all for the delay and in any case has not provided a reasonable explanation for his failure to act with “all due diligence” and file his Application within the one year time limit prescribed by the Code.

10For all of these reasons the Application is dismissed. Having found that there is no good faith explanation for the delay in filing the Application I need not consider whether any party might have been prejudiced by such delay.