HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natsuki Shimizu
Applicant
-and-
Kinka Family Inc. (JaBistro)
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Shimizu v. Kinka Family Inc. (JaBistro)
WRITTEN SUBMISSIONS
Natsuki Shimizu, Applicant
Hans Harry Felix, Representative
1This Application, filed on February 16, 2016 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to contracts because of citizenship, ethnic origin and reprisal.
2In the Application, the applicant describes incidents that occurred while she worked under contract with the respondent from August 2014 until she resigned on January 24, 2015. Her last day of work was January 30, 2015. The applicant states that the respondent changed her duties and put pressure on her to choose options presented to her regarding changes to her contract, which led her to resign.
3By letter dated March 17, 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 April 16, 2016.
4The applicant filed materials that mostly consisted of documents from a related complaint to the Ministry of Labour. However, the applicant also submitted that after she resigned she and her representative were in settlement discussions with the respondent until these discussions broke down on or about February 18, 2015. The applicant submitted that the one year time period should run from the date on which her negotiations with the respondent ceased. In the Application, the applicant explained that she had been away from Ontario in December 2015, January 2016 and for part of February 2016. The applicant also stated that she had to consider her position carefully. The applicant submitted that the Application has value to the community even though it is late.
Analysis and Decision
5Section 34 of the Code provides as follows:
- (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.
7At 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 resigned from her contract with the respondent because of allegedly discriminatory treatment on January 24, 2015. This is the last incident of alleged discrimination identified in the Application. There is nothing in the Application that indicates that the respondent did anything discriminatory in the discussions that the applicant asserts occurred after her resignation. Attempting to negotiate a settlement does not delay the commencement of the one year period described in section 34(1). Consequently, the latest alleged incident of discrimination fell on January 24, 2015, more than one year before the Application was filed. The applicant was away from Ontario in December 2015 and January 2016, but did not explain why she did not file her Application between January 24, 2015 and December 2015. In my view, it is plain and obvious that the applicant does not have a good faith explanation for her delay in filing this Application.
8The Application is dismissed for delay.
Dated at Toronto, this 5th day of May, 2016.
“signed by”
Douglas Sanderson
Vice-chair