Hatton v. Securitas Canada Limited, 2017 HRTO 1580

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Hatton Applicant

-and-

Securitas Canada Limited Respondent

DECISION

Adjudicator: Esi Codjoe Date: November 29, 2017 Citation: 2017 HRTO 1580 Indexed as: Hatton v. Securitas Canada Limited

APPEARANCES

Douglas Hatton, Applicant

Andrew Ostroom, Counsel, and Daria Chyc, Student-at-law

Securitas Canada Limited, Respondent

Jennifer Hodgins and Lauren Berdock, Counsel

Introduction and background

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), with respect to employment because of disability. There were originally three corporate respondents; however as noted in Interim Decision 2017 HRTO 1155, the second corporate respondent ("SCR") settled with the applicant on or around May 24, 2017.

2At the commencement of the hearing, the applicant advised the Tribunal that he reached a settlement with the third corporate respondent ("TCR"). The applicant filed a Confirmation of Settlement, Form 25, which confirms the agreement between the parties. As such, the TCR's name has been removed from the style of cause.

3At the hearing, the respondent raised a preliminary objection; it asserts the Application should be dismissed due to delay. As outlined below, the Application is dismissed as untimely.

submissions

Timeliness of the Allegations

4The parties do not dispute that the applicant made different allegations against the three original respondents. To that end, the respondent submits that the applicant has only made one allegation against it. The applicant alleges that he complained to his supervisor that a representative of the SCR subjected him to discriminatory treatment, and that the supervisor failed to investigate his complaint. In essence, the allegation is that the respondent did not fulfill its duty to investigate the human rights complaint. The applicant allegedly made the complaint in August, 2014, yet the applicant did not file the Application until April 25, 2016. The respondent asserts that the applicant continued to work without further complaint until he filed his Application.

5The respondent submits that in his Reply, the applicant suggests for the first time that the respondent engaged in a series of events that constitute discrimination and/or harassment. The respondent asserts that the applicant has not particularized what those events are, but in any event, even if such a series exists, the Application is still untimely. To that end it notes that the last event that the applicant references occurred on April 8, 2015.

6The respondent submits that it would sustain prejudice were it required to respond to this case at this juncture. It notes that it is difficult for its witnesses to recall the events, and one witness no longer works for it.

7The applicant submits that the August 2014 incident constitutes the first in a series of incidents as contemplated by s.34(1)b of the Code. He asserts that he was discriminated against on or about November 20, 2014, on or about January 14, 2015, and on April 8, 2015. The last instance of discrimination was allegedly on April 24, 2015; however, he was unable to provide any particulars about that incident. At any rate, he submits that these events were all similar in nature and kind, and that there was only a minor temporal gap between each one.

8Lastly, the applicant asserts that the respondent has not established that it will be prejudiced were the Application to proceed.

analysis

9Section 34 of the Code outlines the timeframe within which an application may be filed, namely one year. The section reads 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.

10It is unnecessary to determine whether the Application relates to one incident (as argued by the respondent), or a series of incidents (as argued by applicant), because in either case it is untimely. Although the applicant claimed that the last incident occurred on April 24, 2015, he failed to make any allegations relating to incidents that occurred on that day. The last alleged incident set out in his Application occurred on April 8, 2015, and therefore he filed his Application more than one year after the last incident of alleged discrimination.

11Despite my findings above, subsection 34(2) of the Code allows for a filing of an application outside of the time limit if the Tribunal is satisfied that the delay occurred in good faith, and no substantial prejudice will result to the respondent. The applicant did not offer any explanation for why he failed to file his Application prior to either one-year time frame. Given his failure to provide a good faith explanation for the delay in filing the Application, I do not need to address whether the respondent has been subjected to any prejudice; see Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para. 16.

12Consequently, I find that the Application is untimely.

order

13For the reasons outlined above, the Application is dismissed.