Cosmo Renda v. Toyota Motor Manufacturing Canada Inc., 2017 HRTO 1002

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cosmo Renda

Applicant

-and-

Toyota Motor Manufacturing Canada Inc.

Respondent

DECISION

Adjudicator: Mary Truemner

Date: August 4, 2017

Citation: 2017 HRTO 1002

Indexed as: Renda v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Cosmo Renda, Applicant

Self-represented

Toyota Motor Manufacturing Canada Inc., Respondent

Melissa Roth, Counsel

introduction

1This Application alleged discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The last incident of alleged discrimination contained in the Application relates to the applicant’s employer, who is the respondent, inappropriately accommodating the applicant’s disability by transferring him to a new position where he could no longer maintain his status as a Team Leader. That transfer occurred on September 24, 2015. The Application was filed more than a year later on October 20, 2016.

2On March 8, 2017, the Tribunal sent the applicant a letter to advise him that the respondent had filed a Response to the Application, requesting that the Tribunal dismiss the Application for delay because it was not filed within one year of the last alleged date of discrimination. The Tribunal’s letter advised the applicant that a preliminary hearing would be scheduled to address the request.

3Subsequent to the Tribunal’s letter of March 8, 2017, the applicant filed a Request for an Order During Proceedings which included a request to amend the Application by adding a respondent and by adding new allegations of Code violations between October 12, 2016 and sometime in March, 2017, but the Notice of Preliminary Hearing, dated May 15, 2017, stated that the hearing would deal with the issues identified in the Tribunal’s letter of March 8, 2017.

4On April 7, 2017, the applicant filed a Reply which included reasons for the delay in filing his Application. His reasons went beyond the reasons for the delay cited in his Application. In the Reply, he described stresses, including illness, for himself and his family.

5On July 6, 2017, the applicant wrote to the Tribunal that he did not intend to expand upon the reasons for the delay related to his personal family life.

preliminary hearing

6At the preliminary hearing, which took place on July 13, 2017, the applicant confirmed that he intended to rely on the submissions respecting delay contained in his Reply that related to his personal family life. The respondent argued that the applicant had never delivered any Reply to the respondent. It was discovered at the preliminary hearing that the applicant had mistakenly failed to serve the Reply on the respondent, but, after the applicant immediately emailed to the respondent’s counsel the relevant page of the Reply, the respondent’s counsel confirmed that she was prepared to proceed with oral submissions on the delay issue.

7In fact, both parties provided oral submissions at the preliminary hearing, and I orally dismissed the Application, as it was originally filed, for delay, with reasons to follow. I explained that I was not dealing with the applicant’s Request to amend the Application, as it was not an issue identified for the preliminary hearing, but that did not extinguish any right he may have to file another Application respecting any timely allegations of Code violations involving more recent incidents than the ones identified in the Application I have dismissed.

8My reasons for dismissing the Application are provided below.

finding

9Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

10The applicant argued at the preliminary hearing that there were essentially two reasons for which the Application should not be dismissed for delay.

Fear of Reprisal

11The first reason is that the applicant delayed filing the Application because he feared retaliation or reprisal from the respondent. He admitted, however, that he complained about the allegations described in the Application to the respondent’s Human Resources Department, as well as to the Occupational Therapist without fear of reprisal, well before he filed the Application. He believed that it would be an external complaint, such as one to the Tribunal, which might cause the respondent to retaliate. He could not substantiate his fear, and when I asked him about his lengthy career with the respondent and if he had experienced retaliation or reprisal from the respondent for complaining before he filed the Application, he said no. Essentially, his fear was merely speculative with no specifics or nor any mention of evidence to justify it.

12The Tribunal has consistently found that fear of retaliation or reprisal is not sufficient to establish good faith for the purposes of extending the one year limitation period. See Ellis v. Ontario Secondary School Teachers’ Federation, 2010 HRTO 2162 and James v. The Regional Municipality of Waterloo Police Services Board, 2016 HRTO 206.

13See also Poursina v. Southern Lights Co-operative Homes Inc., 2016 HRTO 1551, where the applicant was waiting to move out of her housing co-operative before filing a human rights application against it for fear of reprisal given that the co-operative provided her housing, but the Tribunal found that good faith was not established by that fear, justified or not. At para. 34, the Tribunal stated:

I appreciate that it is difficult for an occupant in a housing facility (or for an employee who is still employed with a respondent) to file a human rights application against their current housing provider (or employer). However, the Code provides protection for such persons against a housing provider (or employer) engaging in reprisal or retaliation against them for seeking to claim and enforce their rights under the Code: see s. 8. The fact of an ongoing relationship with a housing provider or employer has not been regarded by this Tribunal as a sufficient explanation to justify delay in filing an application.

14Consistent with the cases above, I also find that fear of reprisal does not constitute good faith for the delay in filing an Application, particularly when there has been no threat of reprisal and nothing to substantiate such a fear.

Stress and Illness

15The second reason the applicant provided to justify allowing the Application to proceed despite the delay relates to stress and illness in his family that he argued stretched for over a year after the last date of alleged discrimination. The applicant agreed that while he was stressed and anxious during the year following the last date of alleged discrimination, he was not too ill or occupied with family members to be unable to perform full-time duties at the workplace. I also note that he was able to engage in meetings at work with management and the health centre, providing respondent representatives with medical documents when they requested them.

16The Tribunal does accept that a delay may be in good faith because of an applicant’s disability. See Dionne v. Toronto (City), 2011 HRTO 317. However, the Tribunal has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360 and James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 (Div. Ct.) at paras. 45 – 50.

17In this case, the applicant has not provided the Tribunal with any information that could establish that his anxiety prevented him from pursuing his legal rights under the Code in a timely way. Similarly, he has not provided any information that could establish that he was so involved in the care of his son, his parents-in-law and his mother, that he was unable to pursue his legal rights under the Code in a timely way. He appeared to argue that it was the awareness of the many problems in his family that caused him to be stressed, and it was his stress which slowed him down so that he was late in filing the Application. He certainly provided no information to lead me to conclude that actually caring for family members left him with no time to file the Application, and, as discussed above, he has not adequately described how his stress and anxiety might have caused him to be so debilitated that he was unable to file in time.

18In conclusion, I find it is plain and obvious that the applicant’s delay was not incurred in good faith, as that term has been interpreted by the Tribunal. There is no need for me to determine whether there would be any prejudice to the respondent if I were to allow the Application to proceed. I do not allow the Application to proceed.

order

19For the reasons set out above, the Application is dismissed as untimely and therefore outside the Tribunal’s jurisdiction.