HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dwayne Scantlebury

Applicant

-and-

M.J. Doyle Racing Stables Ltd.

Respondent

DECISION

Adjudicator: Aida Gatfield

Date: January 7, 2016

Citation: 2016 HRTO 20

Indexed as: Scantlebury v. M.J. Doyle Racing Stables Ltd.

APPEARANCES

Dwayne Scantlebury, Applicant

Self-represented

Adrian Sunter, Respondent

Angie Swartz, Representative

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of disability. It identifies August 31, 2013 as being the last date upon which the Application is based.

PROCEDURAL BACKGROUND

2The Application was sent to the Tribunal on October 21, 2014. In his email the applicant wrote “I believe [I] sent these application files way back in early August and I am writing to find out the status of my application…” Prior to October 21, 2014 the Tribunal had no record of the applicant filing an Application.

3The Tribunal sent the applicant an email dated November 4, 2014 asking him to forward the email he sent to the Tribunal in August 2014 along with the Application. The applicant forwarded one dated October 21, 2014 from the Tribunal confirming receipt of his October 21, 2014 email.

4The Tribunal emailed the applicant on January 8, 2015, confirming discussions held in November 2014, and requesting again any proof that the applicant had that he attempted to file his Application in August 2014. It stated that if he did not provide such proof, the Tribunal would use October 21, 2014 as the date of filing.

5The applicant sent three faxes, two of which were received January 13, 2015 and the third received on January 29, 2015.

6The first two faxes contain an overview of the allegations against the respondent. The third fax contains an email that the applicant sent to the Human Rights Legal Support Centre on July 29, 2014, an email response also dated July 29, 2014 from someone associated with the Human Rights Legal Support Centre, and a July 30, 2014 email, that is cut off, from the same person.

7The Tribunal sent a letter dated February 12, 2015 entitled “Notice of Incomplete Application and Notice of Intent to Dismiss Application” (“the Notice”). In the Notice the Tribunal stated that the Application was incomplete because the last page had not been signed. It also stated that the Application was filed more than one year after the last incident of discrimination described in the Application and the applicant did not appear to cite facts that constitute “good faith” within the meaning of the Tribunal’s case law. The Tribunal asked the applicant to provide written submissions addressing the issues raised in the letter.

8The applicant wrote to the Tribunal on March 2, 2015. He enclosed a last page which he had signed. He also submitted a letter containing eight points, most of which address the allegations that he has against the respondent rather than focussing on the delay in filing his Application. He appeared to provide two explanations for the delay in filing his Application: i) when he had an interview with the Human Rights Legal Support Centre but he did not know that the Human Rights Legal Support Centre and the Human Rights Tribunal were two different bodies; ii) he apparently retained a lawyer but was unable to continue with the lawyer (not associated with the Human Rights Legal Support Centre) working on his behalf because the lawyer moved to London, Ontario.

9By Case Assessment Direction (“CAD”) dated, March 16, 2015, the Tribunal, on its own initiative, directed that the applicant provide additional information about:

• What interview he had with the Human Rights Tribunal and the date of it;

• How he confused the Human Rights Tribunal with the Human Rights Legal Support Centre;

• What, if anything, the Human Rights Legal Support Centre told him about the deadline for filing an Application;

• When, and by whom, his Application was drafted;

• Why there was a delay beyond August 31, 2014 until October 21, 2014 when the applicant eventually sent in his Application to the Tribunal; and

• How these responses constitute “good faith” as required by section 34(2) of the Code.

10In response to the CAD, the applicant sent a fax to the Tribunal on March 24, 2015. He stated that he had an interview with “Human Rights” on October 25, 2013. This appears to be a reference to the Human Rights Legal Support Centre. He states that he did not understand the human rights operation and process. He also indicates that documents he sent to the Human Rights Legal Support Centre did not reach them, though he is not sure why and this may have been an error on his part. He states that he had another interview with the Human Rights Legal Support Centre scheduled for July 28, 2014. He also states that he is not in a position to seek legal help due to his finances. The fax also reiterates the substantive allegations against the respondent.

11A Notice of Confirmation of Hearing was sent on May 7, 2014 setting a preliminary hearing to determine whether the Application should be dismissed on the basis of delay. The respondent was not required to file a response. The preliminary hearing was held on July 21, 2015 by teleconference.

ANALYSIS

12Subsection 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident, or the last incident in a series of incidents, of alleged discrimination. Section 34(1) 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.

13Subsection 34(2) provides that a person may apply 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.

14The applicant stated that he had an interview with “a guy” at the Human Rights Legal Support Centre on October 25, 2013. He did not have this individual’s name. He provided this individual with the details of his complaint. When asked what, if anything, this individual told him about filing the Application, he responded that it was a year from the date the incident happened. The individual gave him a case number and told him he would be in touch soon. But, he did not hear anything for a long while. He also stated that this individual explained to him that the Human Rights Legal Support Centre (“HRLSC”) helps with Applications. He further stated that the individual did not explain with clarity what the Human Rights Tribunal of Ontario (“HRTO”) is; the individual told him that he would send all the information to the HRTO. The applicant stated that he understood that the Application would get sent to the HRTO.

15He stated that he did not hear anything for a long while. He emailed HRLSC and received a response from a different individual than the one he spoke to in October. This second individual was out of the office but responded via email that she would get back to him. He spoke to her the following week and she told him that he may be late for filing the Application. He was not able to provide specific dates of his interactions with the second individual from the HRLSC other than the July 29, 2014 email referred to above. He stated that there was a mix up and he was waiting for a response from “human rights”. When asked to clarify whether that was the HRLSC or HRTO, he replied HRTO. The material shows that, at this point in time, he had only had communication with the HRLSC. Nevertheless, he contended that he mixed up one body for the other.

16The applicant could not provide the date when he became aware that no steps were taken by the HRLSC to file his Application. He indicated that the second individual from the HRLSC advised him to send the Application in and see if it would be accepted. He was not able to provide the date of this conversation. I note that it was his evidence that his interaction with the second individual at the HRLSC was after he contacted the HRLSC because he had not heard anything from them.

17The applicant had two legal representatives (neither of whom was associated with the HRLSC) contact the respondent with respect to his termination. The first was the lawyer who moved to London. Subsequently, the applicant engaged a different lawyer. The applicant stated that the lawyers did not deal with his Application to the Tribunal; rather they were seeking payment of wages. He did not discuss the HRTO Application with either of them.

18This Tribunal has held that efforts to pursue one’s rights elsewhere and/or late discovery of one’s rights, without more, have been found not to justify delay. See: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

19This Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

20The material shows that the applicant was aware of the one-year limitation period to file his Application at least as early as October 25, 2013. Further, he was aware that the HRLSC and HRTO were separate bodies. Although he stated that the HRTO’s role was not explained to him “with clarity” when he met with the first individual at the HRLSC, he understood that a human rights application needed to be sent to the HRTO. In any event, the applicant’s claim of confusion between the HRTO and HRLSC does not sufficiently explain why the applicant was not able to act in a more timely fashion and file his Application within the required one-year time frame given that he was aware of the one-year limitation period.

21Further, there is insufficient evidence to support a finding that the HRLSC advised the Applicant that it would file the Application on his behalf and then failed to do so within the one-year limitation period. The only two specific dates he could provide of his interactions with the HRLSC are the initial interview with an unnamed “guy” October 25, 2013 and the email with the second individual on July 29, 2014. He stated that this second individual advised him to re-submit the Application. Also, that she doubted that his Application would proceed because it was filed late but to nevertheless wait and see if it would be accepted by the HRTO. According to the Applicant, he provided information to this second individual on or about July 29, 2014; it is unlikely that this individual gave advice along the lines that the Application was filed late as the limitation period did not expire until August 31, 2014. I note there is no evidence before the Tribunal indicating that the HRLSC at any time represented the applicant. In my view, it is unlikely that the HRLSC agreed to represent the applicant and then failed to file an Application or contact the HRTO when the Applicant pointed out to them on or about July 29, 2014 that his Application had not been filed and the one-year limitation was approaching. Further, the Tribunal has no record of the Application being filed prior to October 21, 2014.

22Moreover, the Applicant had two lawyers assisting him with the termination of employment. He did not make inquiries of them with respect to his human rights Application.

23The Tribunal has consistently held that ignorance of one’s rights does not, except in the most exceptional cases, constitute a reasonable or good faith explanation for the purposes of s. 34(2) of the Code. An applicant must establish not only that he was ignorant of his rights, but also that he had no reason to make inquiries about those rights. (See, for example, Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174 (Div. Ct.) and Lutz v. Toronto (City), 2009 HRTO 1137.

24In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith as required under section 34(2) of the Code. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

ORDER

25The Application is dismissed.