Chowdhury v. Hilton Toronto, 2017 HRTO 1565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abul Chowdhury

Applicant

-and-

Hilton Toronto

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: November 27, 2017
Citation: 2017 HRTO 1565
Indexed as: Chowdhury v. Hilton Toronto

APPEARANCES

Abul Chowdhury, Applicant

Mohammad Razzak, Counsel

Hilton Toronto, Respondent

Kathleen Tate and Donna D’Andrea, Counsel

Introduction

1This Application, filed on November 18, 2014, alleges reprisal and discrimination with respect to employment because of race, colour, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges various incidents of discrimination spanning the period from 2009 to 2013, including the fact that he was terminated on November 20, 2013.

2The respondent filed a Form 10 Request for an Order During Proceedings (“Form 10”) on January 13, 2017 requesting that three allegations in the Application be dismissed because they occurred more than one year before the Application was filed. The applicant filed a Form 11 Response to a Request for an Order During Proceedings (“Form 11”) on January 31, 2017.

3By Case Assessment Direction dated July 12, 2017 the Tribunal advised that because the applicant’s three allegations occurred more than a year prior to the date the Application was filed, the Tribunal would hold a preliminary hearing to hear submissions with respect to whether these allegations should be dismissed as untimely. The three allegations are as follows:

a. The respondent issued the applicant a five day suspension in September 2009;

b. The respondent failed to properly accommodate the applicant’s injury of November 2012; and

c. The respondent failed to provide the applicant with a taxi chit to use to get home after a late shift in September 2013.

4The applicant testified. Counsel for both the applicant and respondent made oral submissions in addition to providing written submissions in their respective Forms 10 and 11. This is my decision with respect to the delay issue.

submissions

5The applicant acknowledges that he did not file the Application in a timely manner with respect to these three incidents, namely a plot by the respondent against the applicant culminating in his termination.

6For its part the respondent submits these three incidents do not form part of a series of events because they have to have a connection or nexus and cannot be made up of discrete and separate issues. The respondent submits that in this case the applicant’s allegations are three discrete allegations of allegedly wrongful conduct that are unrelated to each other. The respondent further submits that the incidents involve different facts and engage different grounds.

7The respondent submits the applicant has established no good faith reason for the delay, and his reason that he was engaged with the union is not a sufficient reason, nor did the applicant have to wait until the grievance process had concluded before bringing his Application. The respondent also submits the fact that the applicant launched several grievances against the respondent belies his evidence that he was scared to bring an Application against the respondent.

8The parties also made submissions with respect to prejudice.

Legal principles

9Section 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.

10The 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 justify exercising the discretion under section 34(2). … 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 inquiries about options for pursuing the alleged wrong.

11The Tribunal also 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.

12When considering whether the allegations constitute a series of incidents within the meaning of section 34(1)(b), the Tribunal generally considers the following factors:

• whether there is an ongoing series of incidents or whether there is a single act of alleged discrimination with continuing effects: Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”);
• whether the incidents involve fresh steps taken by the parties, with each step giving rise to a separate alleged breach of the Code (Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, as cited in Garrie at para. 40);
• whether the alleged discriminatory incidents are part of a pattern or series of incidents of a similar nature or character: Garrie; and
• whether any gap of a year or more interrupts the series of incidents. See, e.g.: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; Chintaman v. Toronto District School Board, 2009 HRTO 1225; and Killeen v. Soncin Construction, 2013 HRTO 350 (“Killeen”).

13The Tribunal has explained that to determine whether or not the alleged incidents are part of a pattern or of similar nature or character, there must be a thematic connection or nexus between the incidents.

analysis and decision

14At this stage, I would not exercise my discretion to dismiss this Application on the basis of timeliness.

Series of Events

15With respect to whether or not this is a series of events, the last event in the series is the applicant’s termination. The untimely incidents occurred in 2009, 2012 and 2013. The incidents may have a thematic connection, and in my view, I cannot determine this without hearing the parties’ evidence.

16While the respondent contends these incidents are unrelated to each other and to the applicant’s termination, there is no basis in this case for determining, prior to hearing evidence, that the applicant’s allegations do not constitute a series of incidents. The allegations are all related to the same theme: that he was targeted by his employer in these incidents that culminated in his termination. Whether the applicant can ultimately prove his allegations is a decision for the adjudicator hearing this case on the merits who will be in a position to evaluate the evidence.

Prejudice

17The respondent submitted it would be prejudiced by in having to address the applicant’s allegations given the five year passage of time. It submits that memories will have faded, including the applicant’s, and given the delay the respondent is prohibited from preserving the necessary documents and recording the relevant memories; these concerns are present here given lengthy passage of time. In addition, some individuals are no longer employees of the respondent. The applicant conversely submits that ultimately it is for the Tribunal to dispense justice, and if the applicant cannot prove his claims because of the passage of time, then his allegations will be dismissed. He submits that even if certain individuals are no longer employed by the respondent, they are compellable as witnesses.

18At this stage, I would not find any prejudice to the respondent that would convince me to dismiss the applicant’s allegations. This is not a final decision, and the respondent may make further submissions in this regard to the hearing adjudicator.

Order and next steps

19The respondent’s request for a dismissal of the allegations from 2009, 2012 and 2013 is dismissed.

20The Application will be set for a one day hearing.