Anil Sambhi v. Ontario Power Generation, 2017 HRTO 1175

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anil Sambhi

Applicant

-and-

Ontario Power Generation

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: September 8, 2017

Citation: 2017 HRTO 1175

Indexed as: Sambhi v. Ontario Power Generation

WRITTEN SUBMISSIONS

Anil Sambhi, Applicant

Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant, who self-identifies as of East Indian origin, alleges that in August 1991 because of his colour and ethnic origin he did not receive a promotion to a supervisor position, and that from then until 2002 when he retired he did not receive appropriate annual pay increases.

3On July 28, 2017, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) because it appeared that the Application was outside the Tribunal’s jurisdiction to decide because it appears the Application is outside the HRTO’s jurisdiction for two reasons. The first reason is that:

• it appeared that the Application had been filed more than a year after the last incident of discrimination and that the applicant had not cited facts that constitute good faith within the meaning of section 34(1) of the Code;

4The applicant responded to the NOID on August 28, 2017.

5This Application was filed on May 9, 2017. The Application relates to a series of incidences of discrimination that allegedly occurred during the period from 1991 to 2002, although the applicant alleges that the last discriminatory incident occurred on August 29, 1992, which appears to have been an error and should refer to 1991. The Application was filed more than fifteen years after the last alleged discriminatory incident alleged by the applicant before he retired in 2002.

6For the following reasons, I find that the Application must be dismissed because it is plain and obvious that it is out of time and the applicant has not provided a good faith explanation for the delay.

DELAY

7Sections 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.

8This Application is out of time because it was filed more than 15 years after the last alleged discriminatory event. Accordingly, unless the applicant can establish a good faith explanation for the delay, the Application must be dismissed.

9Pursuant to Tribunal jurisprudence an Application can only be dismissed at this preliminary stage, if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See for example, Masood v. Bruce Power, 2008 HRTO 381; Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167 and Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

10The 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, when they may seek to pursue a human rights claim. See for example, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”).

11In his written submissions, the applicant explained that his delay was occasioned by the fact that he did not receive a copy of an investigation document from another employee’s workplace complaint that showed that discrimination was found in that individual’s case until after the applicant retired. He did not specify when he received that document. He submits this document demonstrated systemic discrimination, which on his submission, means it has no start or end date, and therefore the time limitation should not apply.

12The applicant further submits that in response to a letter he wrote to the Ontario Anti-Racism Directorate, he received a response from the Minister in February 2017, and he advised the applicant to contact the Tribunal.

13The applicant also submitted a letter dated March 30, 2011 in which the respondent referred to the fact that the applicant attempted unsuccessfully at some point before then to have the human rights matters addressed by the Human Rights Commission (“Commission”). The applicant submits he aborted the mediation process at the Commission because the respondent offered some money, albeit not in accordance with the collective agreement.

14It is clear that the applicant was aware of his human rights issues before 2011, as indicated in the respondent’s letter, and the applicant admits that he did try to have the Commission address his human rights issues at that time, although he aborted it at the mediation stage. This is not a good faith reason for his delay in bringing this Application.

15The applicant’s explanation that he delayed bringing this Application because he only received the investigation report sometime after his retirement also is not evidence of a good faith delay. The applicant was aware of his own human rights issues before 2011.

16The Tribunal has held on numerous occasions that pursuing other avenues of redress is not a good faith explanation for delay in filing a human rights application. See Miller, above and Lutz v. Toronto (City) 2009 HRTO 1137. I am satisfied that it is plain and obvious that this Application is out of time and that there is an insufficient basis to conclude that there is a good faith explanation for the delay.

17The requirement of good faith is more than the absence of bad faith. There is no indication of bad faith here, but there is equally no indication at all that the applicant acted with all due diligence in filing this Application.

18This Application is out of time and it is plain and obvious that there is no good faith explanation for the delay in filing the Application.

19Having come to this conclusion, I need not consider the second reason the Tribunal considered for dismissing this Application.

DECISION

20The Application is dismissed.