Bryan v. Penske Truck Leasing Canada Inc., 2017 HRTO 1406

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

O'Neil Bryan

Applicant

-and-

Penske Truck Leasing Canada Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: October 24, 2017

Citation: 2017 HRTO 1406

Indexed as: Bryan v. Penske Truck Leasing Canada Inc.

WRITTEN SUBMISSIONS

O'Neil Bryan, Applicant

Self-represented

1The purpose of this Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2On June 5, 2017, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his race, colour, ancestry, and ethnic origin. Specifically, he alleged that he was subjected to racist pictures and jokes during his employment, and was demoted with a reduction in pay on February 21, 2016. He stated that he left his job with the respondent in “April 2016”.

3In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “February 21, 2016”. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), he wrote:

I did not apply prior to the end of my employment at Penske for fear of reprisal as another co-worker had taken them to court due to an unrelated matter and there was lots of chatter in the workplace, and management made things difficult for him. I have four children that I have to support and my focus had to be on them as during that time financially things were spiralling out of control.

4The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

5On July 31, 2017, the Tribunal issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed outside the one-year time limit in s. 34(1) of the Code. The Tribunal directed the applicant to provide written submissions in response to this issue.

6On September 27, 2017, the applicant filed written submissions, which stated:

Upon good faith the reason for the delay of processing the submission of the complaint against Penske Truck Leasing was due to a series of events that were unfolding within my life. During my tenure with Penske I was the main source of income in my household of 5 others which included four young children and my wife making coming forward with such a complaint a difficult task. I was responsible for paying a mortgage, line of credit, car payment, along with credit cards and I couldn’t risk the security of my employment. To add, one of my youngest sons has been ill most of his life with asthma and had been admitted in the Hospital on and off throughout the years. I’m hoping that this explanation will suffice and that you can understand the challenging position I was in coming forward while employed with a company that myself and my family depended on so greatly.

7Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a NOID. The NOID is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will 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 Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

8Given that the last alleged incident of discrimination occurred on February 21, 2016, but the Application was not filed until June 5, 2017, I find that the Application was filed approximately three and half months outside the one-year time limit in s. 34(1) of the Code.

9The main issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

10In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained, at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

11In my view, it is plain and obvious that the applicant’s delay in filing his Application was not incurred in good faith. He has provided an explanation why he was unable to file his Application during his employment with the respondent, which ended in April 2016, but he has provided no explanation why he was unable to file his Application within the one-year time limit in s. 34(1) of the Code after his employment ended. After his employment ended in April 2016, he still had until February 21, 2017 to file his Application in a timely manner, but he did not file his Application until June 5, 2017.

12In the absence of an explanation why the applicant was unable to file his Application between April 2016 and June 5, 2017, I am not satisfied that his delay in filing his Application was incurred in good faith.

13In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

14The Application is dismissed.