Cheong v. Bank of Montreal, 2016 HRTO 54

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simon Cheong

Applicant

-and-

Bank of Montreal

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: January 13, 2016

Citation: 2016 HRTO 54

Indexed As: Cheong v. Bank of Montreal

WRITTEN SUBMISSIONS

Simon Cheong, Applicant

Osborne Barnwell, Counsel

Bank of Montreal, Respondent

Stephanie Young, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On May 26, 2015, the Tribunal wrote to the applicant, delivering the respondent’s Response (Form 2) in which the respondent sought the early dismissal of the Application because of delay in its being filed. In the letter the applicant was directed to respond to the dismissal issue raised by the Response (Form 2) by June 11, 2015.

3The Tribunal’s letter explained to the applicant that if he did not respond as directed, the Application may be dismissed as abandoned.

4The applicant did not respond to the Tribunal’s Direction and the time for doing so passed.

5In Decision 2015 HRTO 849, the Application was dismissed as abandoned.

6The applicant then filed a Request for Reconsideration of the Decision. The applicant argues that he did receive the May 26, 2015 correspondence from the Tribunal but due to an error his counsel did not respond to it.

7The respondent opposes the Request arguing that there is no basis in the Rules governing reconsideration to grant it based on what is essentially a claim of solicitor’s negligence.

8The parties also made submissions on whether the application should be dismissed for delay.

9The respondent \ argues that if the Request to set aside the dismissal on the basis of abandonment is granted the Application should be dismissed due to delay. The respondent argues that the delay was not incurred in good faith as that has been interpreted by the Tribunal.

10The applicant addressed the delay issue but argues that the delay arose in part because a complaint was initially filed with the Canadian Human Rights Commission instead of the Human Rights Tribunal of Ontario and getting it wrong (jurisdictionally) about where to file the complaint is a good faith explanation for the delay.

11For the reasons that follow the Request for Reconsideration is dismissed and the previous dismissal of the Application is confirmed. Assuming without deciding that the dismissal of the application on the basis of abandonment were set aside, this Application should nonetheless be dismissed because there is no good faith explanation for the delay in its being filed.

12Sections 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.

13The Application was filed on December 4, 2015. The final incident of alleged discrimination occurred on October 30, 2014. The Application is out of time and must be dismissed unless the applicant can satisfy the Tribunal that the delay was incurred in good faith.

14The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

15As indicated the applicant alleges that he was discriminated against on October 30, 2014 when he was dismissed from employment with the respondent. This is the last of an alleged series of discriminatory incidents. Accordingly, the Application should have been filed at the latest on October 30, 2015.

16Shortly after his dismissal the applicant retained counsel who was in contact with counsel for the respondent. The parties engaged in discussion with a view to resolving the dispute without litigation. These discussions did not resolve the matter.

17The applicant filed a complaint with the Canadian Human Rights Commission (“CHRC”) on or about October 27, 2014. There was apparently some discussion between the applicant and the CHRC on November 12, 2014 wherein he was advised orally that the complaint might be outside of its jurisdiction. On November 20, 2014, the CHRC advised that it had no jurisdiction because the respondent was within provincial jurisdiction. As indicated the Application was filed on December 4, 2014.

18In my view the applicant has not provided a good faith explanation for the delay in filing this Application. The applicant argues that he proceeded in the wrong forum, in good faith, and when he learned that it should not have been filed with the CHRC he acted with reasonable dispatch in filing this Application.

19However, the applicant provided no real explanation for his failure to make proper and timely inquiries about his legal options before the limitation period had expired such that when he was advised by the CHRC that it had no jurisdiction the limitation period had expired. I note in this regard the respondent’s argument that the applicant would or should have known that his employment relations were provincially regulated. In any case the applicant should have been making inquiries before the 11th hour and has provided no real explanation for the failure to do so in time to begin the process in the correct forum. I also agree with the Tribunal’s Decision in Gordon v. The Manufacturing Life Insurance Company (“Gordon”), 2012 HRTO 476 which in some ways is similar to this case. In Gordon, the applicant initially filed his complaint with the CHRC, in that case this was done after the expiry of the limitation period. The Tribunal noted that the applicant could not explain why he had not made enquiries earlier than he did and did not explain why he did not file an Application with the Tribunal as well to preserve his rights while the jurisdictional issues got sorted out. See as well Vushaj v. ADM Agri-Industries Company, 2015 HRTO 19 and the cases cited therein.

20In my view this circumstance is really no different than the cases where an applicant relies on the resolution of another proceeding before filing their Application. The Tribunal has not accepted this as a good faith explanation for delay no matter how relatively short the delay. See Hollett v. Unifor, 2015 HRTO 29 and the cases cited therein at paragraph 24.

21For all of these reasons I find that the applicant has not offered a good faith explanation for the delay in filing this Application.

22Having found that there is no good faith explanation for the delay it is not necessary to consider whether any party would be prejudiced by the delay.

23For all of these reasons the Application is outside of the Tribunal’s jurisdiction because it was filed beyond the one year time limit prescribed in section 34(1) of the Code. Given my conclusion, it is unnecessary to determine whether the initial dismissal on the basis of abandonment should be set aside. In the result the application is dismissed and the result is the same.