Terry Lesperance v. The Corporation of the City of Windsor, 2017 HRTO 1333

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Lesperance

Applicant

-and-

The Corporation of the City of Windsor

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: October 10, 2017

Citation: 2017 HRTO 1333

Indexed as: Lesperance v. Windsor (City)

WRITTEN SUBMISSIONS

Terry Lesperance, Applicant

Self-represented

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 termination of the applicant’s employment which occurred on April 26, 2011. The Application was filed six years later on April 25, 2017.

2On August 23, 2017, the Tribunal sent the applicant a Notice of Intent to Dismiss, advising the applicant that the Application was filed more than a year after the last incident of alleged discrimination and the applicant had provided no “good faith” reason for the delay. I note that “good faith” is a term used in ss. 34(2) of the Code to refer to a reasonable explanation for a delay.

3In response to the Notice, the applicant restated many of the allegations contained in the Application but he did not provide any reason for the six year delay in filing his Application. He did refer to an arbitration proceeding and a proceeding before the Workplace Safety and Insurance Board (“WSIB”). He also inquired as to whether the Tribunal actually investigated his allegations and took issue with what, in his view, was a suggestion by the Tribunal that he was acting in bad faith when he filed his Application.

finding

4An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381.

5For the reasons set out below, I have determined that it is plain and obvious that the Application is untimely and should be dismissed for delay.

6Section 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.

7The applicant provided no reason for the delay in filing his Application in his Response to the Tribunal’s NOID.

8To the extent that his delay may have been caused by his pursuit of other claims such as his grievance and a claim before the WSIB, the Tribunal has held on a number of occasions that pursuing alternative recourses does not provide a legitimate explanation for a delay in filing an Application with the Tribunal. See, for example, Saxon v. Amherstburg Police Service Board, 2015 HRTO 318. As such, 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. I note that this does not mean the applicant was acting in “bad faith” when he filed his Application, it simply means that he has failed to provide a reasonable explanation for his failure to file this Application within the one year time frame set out in the Code.

9As a final point, I note that the Tribunal does not investigate applications that are filed with it. The Tribunal acts much like a court with parties having to either represent themselves or have someone represent them.

order

10For the reasons set out above, the Application is dismissed as untimely and therefore outside the Tribunal’s jurisdiction.