Jeffrey Farr v. Baycoat Limited, 2017 HRTO 1167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Farr Applicant

-and-

Baycoat Limited Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: September 8, 2017 Citation: 2017 HRTO 1167 Indexed as: Farr v. Baycoat Limited

APPEARANCES

Jeffrey Farr, Applicant Self-represented

Baycoat Limited, Respondent Neena Gupta, Counsel

background

1This Application, filed on March 10, 2016, alleges reprisal and discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant makes a number of allegations of discrimination against the respondent that appear to date back to at least 2008. Generally the applicant alleges that the respondent discriminated against him in taking disciplinary action for his absenteeism related to his disability and denied him job opportunities because of these absences. In addition, the applicant alleges the respondent failed to investigate his complaint of harassment and mistreatment in the workplace.

3By Case Assessment Direction (“CAD”) dated January 16, 2017, the Tribunal directed that a preliminary hearing be held in this matter to determine whether the Application should be dismissed, in whole or in part, on the basis that it appears that some or all of the allegations appear to be untimely.

4The hearing took place by teleconference on June 19, 2017.

decision

5For the reasons that follow, I find that several of the allegations in the Application are out of time and therefore must be dismissed because the applicant has failed to provide a good faith explanation for the delay in filing his Application with respect to those allegations.

analysis

6Section 34 of the Code provides:

34(1) If a person believes that any of his or her rights under Part 1 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.

7These provisions have 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 when they seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

8Clearly many of the alleged incidents of discrimination occurred more than one year prior to the Application being filed. The issue is whether or not the alleged disciplinary allegations relating to the applicant’s absenteeism which all occurred in the period in and prior to May, 2013, (“disciplinary allegations”) and the allegations that he was denied several job opportunities because of his absenteeism, as well as an allegation that the respondent failed to investigate his claim of harassment (“denial of job opportunities allegations”) which all occurred between March, 2015 and the filing of the Application, constitute a series of incidents within the meaning of section 34(1)(b) of the Code.

9The Tribunal has interpreted the phrase “series of incidents” in section 34(1)(b) as requiring that the alleged incidents be connected to each other in terms of their timing and their subject matter. The phrase “series of incidents” recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language of the section provides for flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory has been identified. The Tribunal has determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame. See Chintamen v. Toronto District School Board, 2009 HRTO 1225.

10In this case whether the disciplinary allegations ending May 2013, can be connected in terms of their subject matter with the denial of job opportunities allegations commencing March 2015, the gap in time of almost 2 years between the allegations are simply too great to be considered a temporally connected series of incidents.

11The disciplinary allegations are clearly out of time. The Application was filed almost 2 years after these alleged incidents of discrimination. Thus, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

12The Tribunal has set a “fairly high onus” for an applicant to establish that a delay in filing was incurred in good faith. An applicant “must show something more than simply an absence of bad faith” and an applicant must “act with all due diligence” to meet the one-year filing deadline: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25. A reasonable explanation for the delay is requisite.

13The applicant attributes his delay in filing his Application to his fear “from widespread acts of reprisal and retaliation that occur after defending one’s rights and sticking up for oneself.” He indicates that “I had to make a choice whether or not it was worth fighting over”. That being said, the applicant did not adduce any evidence that his fear was in fact based on reasonable or probable grounds or because of the respondent’s conduct. Essentially, the applicant decided that he would rather continue working in the environment he found himself in rather than bring a human rights complaint against his employer. That certainly was a decision he was entitled to make and it may well have been the best decision for him at the time. However, the desire to avoid possible retaliation which might have resulted from making a human rights application is not a reasonable explanation for the delay of almost two years before the applicant raised his discipline allegations. See Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2013 HRTO 1756 at para. 39 and McDermott v. Four Seasons Hotels Inn 2014 HRTO 298 at para. 15, where the Tribunal held that a fear of reprisal, by itself, is not a good faith explanation for a delay in filing an application.

14Moreover, the applicant does not explain why he felt at liberty to make a complaint under the Employment Standards Act, in March 2013 but not pursue his disciplinary allegations under the Code.

15The applicant asserts that the delay in filing his Application with respect to the disciplinary allegations was in part because he was not aware of his rights under the Code until 2010. Essentially this is an assertion that the applicant was ignorant of his legal rights under the Code and its requirement that an application be filed within the mandatory one-year limitation period. The Tribunal has said in many cases, however, that ignorance of the law is no excuse in matters relating to delay in asserting one’s rights. See, Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 at para. 10 and Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8.

16For these, reasons, I find that this Application as it relates to the disciplinary allegations which allegedly occurred in and prior to May 2015, must be dismissed because they are out of time and the applicant has not provided a good faith explanation for the delay in raising these allegations. Given this conclusion there is no need to address the issue of substantial prejudice.

17On September 12, 2016, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to amend the Application to include an allegation relating to his application for a second Quality Assurance Supervisor position. It appears that this refers to a hiring competition that occurred in 2012. Under the circumstances, this allegation is clearly out of time and the applicant has provided no explanation, good faith or otherwise, for the delay in raising the allegation. For this reason, the RFOP is denied.

order

18The Tribunal orders:

a. The disciplinary allegations, namely, those allegations identified in the Application’s narrative as Instances 1 – 6 inclusive are dismissed as being untimely;

b. The RFOP dated September 12, 2016 is denied; and

c. The Application, save for the allegations which have been dismissed as being untimely, will be scheduled for a hearing.

19I am not seized.