HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Soraya Mangal
Applicant
-and-
Quantum Management Services and Ilana Glazenberg
Respondents
DECISION
Adjudicator: Laurie Letheren
Indexed as: Mangal v Quantum Management Services
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of family and marital status and age.
2The applicant has named two respondents to this Application. The corporate respondent is a temporary work placement agency with whom the applicant had an employment relationship. The individual respondent is an employee of a company where the applicant was placed by the corporate respondent from April 17 to April 25, 2014.
3The Application is dated May 12, 2015 and it was received by the Tribunal on May 13, 2015.
4On the Application, it is indicated that the date of the last incident is May 8, 2014.
5After a reviewing the Application, the Tribunal noted the it may not have jurisdiction to hear the Application as it was filed more than one year after the date of the last alleged incident of discrimination. The individual respondent also filed a Request for Summary Hearing to determine whether the applicant had a reasonable prospect of succeeding in demonstrating that the respondent had infringed her Code rights.
6On November 23, 2016, the Tribunal issued a Case Assessment Direction (CAD) in which it directed the Registrar to schedule a half-day teleconference to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:
a. it appears that some or all of the allegations may be untimely; and/or,
b. there is no reasonable prospect that the Application or part of the Application will succeed.
7The CAD outlined the law to be applied in determining these issues and provided the parties directions with respect to presenting evidence and calling witnesses.
8The preliminary hearing was held on March 9, 2016. During this preliminary hearing I heard submissions from the applicant and the respondents. I also reviewed the documents that were filed in advance of the hearing.
ANALYSIS AND DECISION
Delay
9Section 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.
10The 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).
11At 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.
12The first issue to determine is when the last alleged incident of discrimination occurred.
13The applicant alleges that she experienced discrimination when she was advised by the individual respondent that her assignment was terminated on April 25, 2014. This is the last contact that the applicant had with the individual respondent and therefore, is the last alleged incident of discrimination by the individual respondent.
14It is agreed that the last correspondence between the applicant and the corporate respondent was on May 8, 2014. On that date, the applicant wrote an email to the corporate respondent to confirm an earlier conversation in which the applicant had learned that there would be no further steps taken to resolve the issues that the applicant had raised about the individual respondent. The last possible date of alleged discrimination by the corporate respondent is therefore, May 8, 2014.
15Given that the last alleged incident of discrimination by the individual respondent occurred on April 25, 2014, but the Application was not filed until May 13, 2015, I find that, with respect to allegations against the individual respondent, the Application was filed approximately two weeks and four days outside the one-year time limit in s. 34(1) of the Code.
16Given that the last alleged incident of discrimination by the corporate respondent occurred on or before May 8, 2014, but the Application was not filed until May 13, 2015, I find that, with respect to allegations against the corporate respondent, the Application was filed approximately 7 days outside the one-year time limit in s. 34(1) of the Code.
17Once it is determined that the Application was filed outside the one-year time limit, the Tribunal must find that it does not have jurisdiction to hear the Application unless it determines that the applicant’s delay in filing her Application was incurred in good faith.
18In my view it is plain and obvious that the applicant does not have a good faith explanation for her delay in filing this Application. In her Application, she acknowledges that she is late in filing. She states that it had been “difficult to gather up the courage to make this application” and that she “needed to to regroup and bring [her]self to face it today [May 12, 2015]”.
19In my view, the applicant’s mere statement that she found it difficult to gather the courage, and was not able to complete the Application until now does not meet her onus of providing a good faith explanation for the delay. Lack of courage does not fall within the meaning of “good faith” particularly when the term in considered in the context of the provisions of the Code that state that the Tribunal shall deal with applications in a fair, just and expeditious manner.
20Having found that the applicant’s delay in filing her 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.
21The Application is dismissed.
Dated at Toronto, this 9th day of June, 2016.
"signed by"
Laurie Letheren
Vice-chair