Mahdee Jodayree Akbarfam v. Canadian Corps of Commissionaires, Ottawa Division, 2016 HRTO 252

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahdee Jodayree Akbarfam

Applicant

-and-

Canadian Corps of Commissionaires, Ottawa Division

Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: February 25, 2016 Citation: 2016 HRTO 252 Indexed as: Jodayree Akbarfam v. Canadian Corps of Commissionaires, Ottawa Division

APPEARANCES

Mahdee Jodayree Akbarfam, Applicant Self-represented

Canadian Corps of Commissionaires, Ottawa Division, Respondent David Law, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis on the basis of jurisdiction because it is untimely.

2The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”):

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.

BACKGROUND

3In October 2010, the applicant began working for the respondent as a “spare” or “casual” security guard. The respondent offered and the applicant accepted shifts on a regular basis until late November 2013. Between late November 2013 and mid-January 2014, the respondent left regular messages for the applicant offering him shifts, but he did not respond to them.

4On February 6, 2014, the respondent sent the applicant a letter, which informed him that, because he had failed to schedule work and maintain a minimum hours of work, he was considered to have abandoned his employment, and that formal separation of employment would take effect on February 20, 2014.

5On February 24, 2014, the applicant sent the respondent an email, which stated that he was quitting his job.

6On July 10, 2014, the applicant filed an Employment Standards claim with the Ministry of Labour, which alleged, among other things, that the respondent subjected him to racial discrimination, failed to reimburse him for expenses, denied him a permanent position, and owed him wages for hours worked.

7On November 13, 2014, an Employment Standards Officer issued a Decision, which dismissed the applicant’s claims under the Employment Standards Act, 2000, S.O. 2000, c. 41. With respect to the applicant’s allegations of racial discrimination, the Officer stated:

The ESA 2000 does not cover discrimination and racial abuse allegations. While Mr. Jodayree Akbarfam has made allegations regarding such abuse, he was advised by the initial investigating officer by email on August 28, 2014, that he must address such allegations with the Ontario Human Rights Commission. This was reiterated to Mr. Jodayree Akbarfam again by this officer, by email on November 4, 2014.

8On June 29, 2015, the applicant filed an Application under s. 34 of the Code with this Tribunal, which alleged that the respondent discriminated against him with respect to employment because of his race, colour, ancestry, place of origin, ethnic origin, and record of offences. Specifically, he alleged that the respondent subjected him to offensive comments and gestures, denied him shifts and a permanent position, and fired him.

9In section 7(c) of the Application (“What was the date of the last event?”), the applicant answered: August 18, 2014. In section 7(d) (“If you are applying more than one year from the last event, please explain why :”), he answered that he contacted the “Ontario labour board” and the respondent in order to resolve this matter, but that they wasted his time and refused to take action.

10On August 24, 2015, the respondent filed a Response and a Request for Summary Hearing, which denied the allegations of discrimination, and requested that the Application be dismissed on a preliminary basis on the basis of jurisdiction because it is untimely, and on the basis that it has no reasonable prospect of success.

11On October 27, 2015, the Tribunal issued a Case Assessment Direction, which directed the parties to attend a preliminary hearing to address the preliminary issues raised by the respondent. The parties filed written submissions, documents, and case law in advance of the hearing. The hearing took place on February 12, 2016. I heard the parties’ oral submissions on the timeliness issue, and dismissed the Application with written reasons to follow. The following are my reasons.

ANALYSIS

12The first issue to determine is when the last alleged incident of discrimination occurred.

13In his submissions, the applicant offered a different date for the last alleged incident of discrimination than the one identified in his Application. The applicant stated that the last alleged incident of discrimination occurred in April 2014 when the respondent issued him a Record of Employment, which indicated that he had been dismissed. He stated that this implied that the separation of employment occurred because of misconduct by him.

14I disagree. This allegation was not in the Application, and it is not an allegation of discrimination. I find that the last alleged incident of discrimination occurred, at latest, on February 20, 2014 when the termination of the applicant’s employment took effect.

15Given that the last alleged incident of discrimination occurred on February 20, 2014, but the Application was not filed until June 29, 2015, I find that the Application was filed approximately four months and one week outside the one-year time limit in s. 34(1) of the Code.

16The second issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

17In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 (“Cartier”) at para. 21.

18In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

19In his submissions, the applicant stated that any delay in filing his Application was incurred in good faith because the Ministry of Labour failed to resolve his case in a timely manner. He stated that the one-year time limit in s. 34(1) of the Code was wasted by the Ministry of Labour, which ultimately informed him that his claims of discrimination must be filed with this Tribunal.

20I find that the applicant has not established that his delay in filing his Application was incurred in good faith. I do not accept that his delay was incurred in good faith because of the proceeding before the Ministry of Labour. Employment Standards Officers notified him on August 28, 2014, November 4, 2014, and November 13, 2014 that discrimination claims were to be filed with this Tribunal, not the Ministry of Labour. All these notices occurred well before the one-year time limit in s. 34(1) of the Code expired. Furthermore, the proceeding before the Ministry of Labour concluded on November 13, 2014, at which point he still had more than three months to file his Application in a timely manner with this Tribunal, but he failed to do so. He has not offered any explanation, let alone a good faith one, why he waited until June 29, 2015 to file his Application with this Tribunal.

21In any case, even if the proceeding before the Ministry of Labour had concluded after the expiry of the one-year time limit in s. 34(1) of the Code, this Tribunal has consistently held that waiting for other legal proceedings to conclude does not in itself establish that a delay was incurred in good faith, particularly where the applicant could have filed a timely Application while continuing to pursue another legal claim. See Cartier, above, at para. 23.

22In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. The Application is dismissed.

23In view of the fact that the Application has been dismissed on the basis of jurisdiction, it is not necessary to address whether the Application should also be dismissed because it has no reasonable prospect of success.

ORDER

24The Application is dismissed.