Pasquale Falcone v. 2373298 Ontario Inc., 2016 HRTO 1534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pasquale Falcone

Applicant

-and-

2373298 Ontario Inc. o/a Maestro Roberto Trattoria & Pizzeria

(Formerly Pizza AL Metro), Luciano Occhiuto, and

Workplace Safety and Insurance Board

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: November 30, 2016

Citation: 2016 HRTO 1534

Indexed as: Falcone v. 2373298 Ontario Inc.

WRITTEN SUBMISSIONS

Pasquale Falcone, Applicant

Joseph Solomon, Counsel

1This Application, filed on October 14, 2016, 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 and reprisal.

2In the Application, the applicant alleges that the respondents 2373298 Ontario Inc. and Occhiuto terminated his employment on January 5, 2015, after he sustained a workplace injury and applied for benefits under the Workplace Safety and Insurance Act. The applicant alleges that the WSIB required him to attend a meeting with the individual respondent in March 2015, although he had advised the WSIB that he was receiving treatment for depression and anxiety as a result of the individual respondent’s abusive behaviour. The applicant states that his doctor advised him to remain away from that work environment. The documents filed with the Application indicate on April 14, 2015 that the WSIB reduced the applicant’s entitlement to Loss of Earning benefits for non-cooperation because he did not attend a work transition meeting on March 27, 2015. The WSIB dismissed the applicant’s appeal of this decision on June 6, 2016. The applicant states that the last denial from the WSIB occurred in September 2016, which the applicant asserts is the last incident of discrimination.

3By letter dated October 18, 2016, the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because it appeared that the Application was filed more than one year after the last alleged incident of discrimination. The Notice also advised that the applicant did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues by no later than November 17, 2016. The Notice also advised that the Application appeared to be outside the Tribunal’s jurisdiction with respect to the WSIB because the applicant appears to be challenging a decision refusing you a benefit on the basis that the decision-maker misapplied the rules of the benefits program or misinterpreted medical information. The Tribunal has held such allegations cannot reasonably be considered a violation of the Code. See for example Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115.

4Counsel for the applicant filed a letter on November 17, 2016, in which he made the following submissions on the applicant’s behalf. The applicant has been subject to harassment and discrimination as a result of his workplace injury and psychiatric diagnosis resulting from mistreatment by the respondents 2373298 Ontario Inc. and Occhiuto and employees of the Workplace Safety and Insurance Board (“WSIB”). The applicant has pursued redress, citing his Code rights, through government agencies under the Ministry of Labour (“MOL”), including the WSIB (Objections and Appeals), the Employment Standards Branch of the MOL, and the Ontario Labour Relations Board, none of which have addressed the applicant’s Code-related allegations. The applicant has done everything to assert his rights through various processes. Any delay was incurred was due to the applicant’s efforts to achieve redress through the MOL. This Application to the Tribunal is his last hope to enforce his rights and depriving the application of it would be unjust.

Analysis and Decision

5Section 34 of the Code provides as follows:

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 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.

7The Tribunal has stated on a number of occasions that pursuing other avenues of redress before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that he had no reason to make inquiries about his rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14, and Thomas v. Toronto Transit Commission, 2009 HRTO 1582. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

8At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. In this case the applicant alleges that he was dismissed from employment in January 2015, and that the WSIB made an allegedly discriminatory decision in April 2015. However,t he did not file this Application until October 2016, i.e., more than one year after the alleged incidents of discrimination. In the Application, the applicant indicated that he believed the denial of his appeals in June and September 2016 were incidents of discrimination. The Tribunal has held that an unsuccessful appeal, in itself, does not amount to a separate incident of discrimination. See Smyth v. Unifor, Local 1090, 2016 HRTO 1433, Richards v. Ryerson University, 2015 HRTO 1210, and Huo v. University of Western Ontario, 2012 HRTO 198. The applicant did not make any allegations, other than bare assertions of collusion, that indicate that there was anything discriminatory about the denial of his appeals. In these circumstances, there is no proper basis for concluding that the applicant’s appeals were incidents of discrimination. Accordingly, the incidents of alleged discrimination occurred more than one year before the Application filing date and the Tribunal may only deal with the Application if it is satisfied that the delay was incurred in good faith and no prejudice will result to any party affected by the delay.

9The applicant clearly believed the respondents’ conduct was wrong and amounted to a violation of his human rights. In these circumstances, the applicant had every reason to inquire about his rights under the Code, but did not file an Application to this Tribunal within the limitation period. The applicant explained that the delay was incurred in pursuing redress through various agencies/processes within the MOL. As noted above, the Tribunal has generally found that pursing alternate avenues of redress does not amount to a good faith explanation for delay and the applicant has not in my view provided any basis from deviating from this approach. I find that it is plain and obvious that the applicant does not have a good faith explanation for the delay in filing the Application. In the absence of a good faith explanation it is unnecessary to address the issue of prejudice.

10As the Application is dismissed for delay, it is also unnecessary to address the other issue identified in the Notice.

11The Application is dismissed for delay.