Aristomenis Nikitopoulos v. Strabag Inc., 2017 HRTO 1302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aristomenis Nikitopoulos

Applicant

-and-

Strabag Inc.

Respondent

DECISION

Adjudicator: Brian Cook

Date: October 4, 2017

Citation: 2017 HRTO 1302

Indexed as: Nikitopoulos v. Strabag Inc.

APPEARANCES

Aristomenis Nikitopoulos, Applicant

Henry Juroviesk, Counsel

Strabag Inc., Respondent

Andrew Reynolds, Counsel

1This Application alleges discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The Application was filed with the Tribunal on November 28, 2016. The Tribunal scheduled a preliminary hearing to determine if the Application should be dismissed for timeliness. The hearing was held on September 28, 2017 by telephone conference call.

3The applicant did not participate personally in the conference call. Robert Nunes and Henry Juroviesk participated on behalf of the applicant. Mr. Nunes is a paralegal and he was identified as the applicant's representative in the Application. Mr. Juroviesk advised that he is a lawyer and was participating in the conference call as “an agent” of Mr. Nunes. The respondent was represented by Andrew Reynolds, counsel.

4The applicant was employed by the respondent. In February 2014, he suffered a work-related shoulder injury. He returned to modified work in August 2014. His employment was terminated on September 30, 2015. The Application alleges that the termination was related to the applicant's disability. The Application also alleges that the applicant experienced harassment in his employment before the termination.

5The applicant’s union immediately filed a grievance about the termination. However, the union subsequently decided to not pursue the grievance.

6The Application was filed on November 28, 2016.

7Section 34 of the Code provides as follows:

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.

8The one-year period before the Application was filed was the period from November 27, 2015 to November 28, 2016.

9The termination of the applicant's employment occurred on September 30, 2015 and so was outside the one-year period.

10On behalf of the applicant, Mr. Juroviesk submits that there were incidents of discrimination that occurred during the one year period and that there was therefore a series of incidents within the meaning of section 34(1)(b).

11The alleged incidents of discrimination relate to correspondence sent by Mr. Nunes to the respondent and the union asking them to provide him with documentation about the applicant. According to Mr. Juroviesk, the respondent and the union provided only partial information and refused to provide some information.

12The letter to the union asked the union to provide all information pertaining to the applicant. Counsel for the union responded on August 8, 2016. He provided copies of previous correspondence to the applicant about the fact that the union was not going to pursue the grievance, and a legal opinion on that same question. Counsel advised that its practice is to not disclose documents from its litigation files.

13The letter to the respondent asked for a complete copy of the applicant’s personnel file. The letter was initially not responded to and Mr. Nunes repeated the request. It is not clear from the record what information he may have received about according to Mr. Juroviesk the complete record was not provided.

14In my view, in the circumstances of this case, the failure to fully respond to requests for information from a potential litigant is not an incident of discrimination under the Code.

15I am therefore satisfied that the last incident of alleged discrimination was the termination of the applicant's employment on September 30, 2015. This happened more than one year before the Application was filed. As a result the Application was not filed within one year of the last incident of alleged discrimination.

16The next question is whether there is a good faith explanation for the delay.

17Mr. Juroviesk submits that there is a good faith explanation for the delay. The first explanation is that the applicant believed that his union was dealing with the termination of his employment and allegations of discrimination through the grievance.

18The Tribunal has been clear that waiting for the conclusion of some other proceeding, including a grievance before filing an Application does not constitute a good faith explanation if the Application is filed more than one year after the alleged incident of discrimination.

19In this case, the union advised the applicant that it was not pursuing the grievance in June 2016. Counsel submits that the applicant may not have understood this or may not have received the communications and so may have been unaware that the grievance was not being pursued. Even assuming that this was true, the documents filed with the Tribunal by the applicant show that the union’s counsel wrote to Mr. Nunes on August 8, 2016 and explained that the union was not pursuing a grievance. It is therefore clear that the applicant’s representative understood that the grievance was not proceeding and that he knew this in August 2016, well before October 1, 2016.

20Had the Application been filed in August 2016, it would have been in time. However, it was not filed until November 28, 2016.

21According to Mr. Juroviesk, the reason for not filing the Application before October 1, 2016 was that Mr. Nunes was unable to get proper instructions from his client. Mr. Juroviesk advised that the applicant has a very low level of intelligence and was unable to properly provide sufficient information to Mr. Nunes or to give instructions. Mr. Juroviesk advised that as a result, it took Mr. Nunes much longer to prepare and file the Application than would otherwise be the case.

22Mr. Juroviesk was asked what evidence is available to support this contention. He said that the evidence may be found in psycho-vocational test results that were obtained as part of the adjudication of the applicant’s claim for benefits from the Workplace Safety and Insurance Board. These were filed with this Tribunal by the applicant.

23These documents indicate that the applicant may have a learning disability that would require accommodation if he were to participate in educational upgrading. The psychologist recommended that the applicant receive educational upgrading with testing first to determine necessary accommodations and indicated that the applicant might be capable of successfully completing at least high school level uprgrading. Some of the tests indicated that the applicant is in the lowest 10 percentile in some areas, but in the average range in other areas. There is not suggestion in the reporting that the applicant was incapable of expressing himself.

24There is no evidence at all to support the contention that the applicant was unable to tell Mr. Nunes about the details of his alleged discrimination or that it took an exceptional amount of time to provide this information. There is no affidavit from Mr. Nunes to this effect nor was this argument pleaded in any of the submissions filed with the Tribunal before the hearing. Mr. Nunes, who was present for the hearing did not provide any direct information.

25The delay in this case is the period from October 1, 2016 to November 28, 2016. Mr. Juroviesk noted that this was less than two months and submitted that it would be reasonable to let the Application proceed because the delay was not very long. The Tribunal has consistently held that even a delay of only one day requires a good faith explanation.

26In this case there is no good faith explanation for the delay from October 1, 2016 to November 28, 2016. The only explanation offered is that the applicant has an intellectual deficit that meant that it took many months to provide his representative with sufficient information or instructions to proceed with the Application. This explanation is made only by way of submission by Mr. Juroviesk. It is not supported by any evidence at all of the actual interactions between Mr. Nunes and the applicant. It is not supported the results of the psycho-vocational tests regarding the applicant that were filed with the Tribunal.

27I therefore conclude that the applicant has not provided a good faith explanation for the delay in filing the Application. The Application was not filed in accordance with section 34 and it must be dismissed on that basis.