Grovum v. Highbury Ford Sales Limited, 2017 HRTO 1374

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Warner Grovum

Applicant

-and-

Highbury Ford Sales Limited

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: October 17, 2017

Citation: 2017 HRTO 1374

Indexed as: Grovum v. Highbury Ford Sales Limited

WRITTEN SUBMISSIONS

Warner Grovum, Applicant

Self-represented

1This Application, filed on May 9, 2017 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect goods, services and facilities because of age. The applicant alleges that he purchased a vehicle from the respondent on October 27, 2014. On December 16, 2014, the applicant complained to the Ontario Motor Vehicle Council about being overcharged and winter tires, without result. The applicant thereafter complained to the respondent and the Ford Motor Company of Canada on several occasions throughout 2015, 2016 and 2017. He made his final complaint on April 28, 2017.

2By letter dated July 30, 2017 the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because

• while your response to question #7 of the Application alleges that the last incident of discrimination you experienced occurred on April 28, 2017, a review of your Application indicates that it is either not clear what incident of discrimination is alleged to have occurred on this date or how the incident described as occurring on that date constitutes an incident of discrimination within the meaning of the Code. See for example Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Mafinezam v. University of Toronto, 2010 HRTO 1495; and Garrie v. Janus Joan Inc., 2012 HRTO 1955.

The HRTO does not have the power to consider claims filed more than one year after the last incident of discrimination or the last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay [s.34(1)]. You do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”.

3In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues by August 19, 2017, which he did.

submissions

4The applicant submitted that the Notice was based on procedural matters, rather than on merit. The applicant submitted that the Tribunal “missed the mark” by focussing on the one year time limit rather than the respondent’s alleged misconduct. The applicant submitted that the respondent’s failure to communicate with him regarding his complaint made it impossible for him to comply with the one year rule. The applicant submitted that rigid application of the one year time limit would allow the respondent to deliberately delay in order to hide behind the limitation period.

Analysis and Decision

5Section 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.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires 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. This is a mandatory provision, subject only to section 34(2). The mandatory one-year 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The Tribunal has stated on a number of occasions that pursuing other avenues of redress before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that he had no reason to make inquiries about his rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14, and Thomas v. Toronto Transit Commission, 2009 HRTO 1582. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

8At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. The one year time limit set in section 34 is a mandatory limitation period and the Tribunal does not have jurisdiction to deal with application that do not meet the requirements of that section. Accordingly, the one year time limit is not merely a procedural issue.

9In this case, the applicant purchased a vehicle from the respondent in October 2014. By December 16, 2014, the applicant had filed a formal complaint about the respondent’s shortcomings, which he characterizes as age discrimination. The time period for filing an application set in section 34(1) began when he came to the conclusion that the respondent violated his human rights, i.e., in the fall of 2014. Thereafter, he attempted, unsuccessfully, to address his issues with the respondent, but these interactions do not amount to new incidents of discrimination. The applicant seems to have waited until he was certain that he would receive no satisfaction from the respondent before filing this Application. As noted, waiting for another process to conclude does not amount to a good faith explanation for delay. In my view, it is plain and obvious that this Application was filed after the expiry of the limitation period set in section 34 of the Code and that the applicant has not provided a good faith explanation for the delay.

Order

10The Application is dismissed for delay.