Semahun v. Wellington Windsor Holdings Ltd., 2017 HRTO 1595

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esrael Semahun

Applicant

-and-

Wellington Windsor Holdings Ltd. operating as the Residence Inn Toronto Downtown/Entertainment District

Respondent

DECISION

Adjudicator: Laurie Letheren
Date: November 30, 2017 Citation: 2017 HRTO 1595 Indexed as: Semahun v. Wellington Windsor Holdings Ltd.

APPEARANCES

Esrael Semahun, Applicant Self-represented

Wellington Windsor Holdings Ltd. operating as the Residence Inn Toronto Downtown/Entertainment District, Respondent Alexandra Jamieson, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of race and colour. The Application was filed on February 1, 2017.

2When the Application was filed, the respondent was not properly named. The respondent provided its proper business name which is that listed in the style of cause of this Decision.

3On the Application, it is indicated that the date of the last incident of an alleged breach of the Code is December 10, 2015. In the narrative of the Application, the applicant states that he was terminated from employment by the respondent on December 10, 2015, and that he alleges that his race and colour were connected to the reasons for the termination.

4After reviewing the Application, the Tribunal noted the it may not have jurisdiction to hear the Application as it was filed more than one year after the date of the last alleged incident of discrimination. The respondent also filed a Request for Sumary Hearing to determine whether the Tribunal had jurisdiction to hear the Application that appeared to be filed beyond the one year time limit; and in addition, to determine if the applicant had no reasonable prospect of success in demonstrating that the respondent had infringed his Code rights.

5On June 12, 2017, the Tribunal issued a Case Assessment Direction (“CAD”) in which it directed the Registrar to schedule a half-day teleconference to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. it appears that some or all of the allegations may be untimely; and/or

b. there is no reasonable prospect that the Application or part of the Application will succeed.

6The CAD outlined the law to be applied in determining these issues and provided the parties directions with respect to presenting evidence and calling witnesses on the issue of delay.

7The preliminary hearing was held on October 2, 2017. During this preliminary hearing I heard submissions from the applicant and the respondent. I also reviewed the documents that were filed in advance of the hearing.

ANALYSIS AND DECISION

Delay

8Section 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.

9The 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).

10The first issue to determine is when the last alleged incident of discrimination occurred.

11The applicant confirmed during the preliminary hearing that that the alleged incident of discrimination was the termination from his employment on December 10, 2015 which is more than one year prior to the date the Application was filed. To be within the one-year time limit set out in the Code, the applicant was required to file his Application on or before December 9, 2016.

12Once it is determined that the Application was filed outside the one-year time limit, the Tribunal must find that it does not have jurisdiction to hear the Application unless it determines that the applicant’s delay in filing his Application was incurred in good faith.

13The applicant states that the reason for the delay in filing this Application was because a grievance of his termination had been filed and the grievance process took more than one year.

14The respondent submits that waiting for the grievance process to be completed is not a good faith reason for a delay in filing an application at the Tribunal. In addition, the respondent submits that the grievance process was completed within the one year limitation to file the Application so the applicant had the opportunity to file on time. The documents filed show that the grievance was filed on December 15, 2015. The applicant was advised on March 1, 2016 that the grievance was denied and that the union would not be continuing with the grievance.

analysis and decision

15The question of whether waiting for the conclusion of another process constitutes a good faith explanation for delay in filing an application has been considered in several decisions of the Tribunal. In general terms, the Tribunal has found that it does not establish a good faith explanation for the purposes of section 34 of the Code.

16In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 23, the Tribunal stated:

[…] The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

17In the present case, there do not appear to be any circumstances that would justify diverging from the general approach that waiting for the conclusion of another process does not provide a good faith explanation for the delay in filing the Application. In fact, as the respondent pointed out in its submissions, the grievance process was concluded on March 1, 2016, and at that point, had the applicant filed the Application it would have been filed within one year from December 10, 2015, the date when the applicant alleges the breach of his Code rights occurred.

18I therefore find that the applicant has not provided a good faith explanation for the delay in filing the Application.

19As the Tribunal does not have the jurisdiction to hear the Application, it will not address the issue of whether the applicant has no reasonable prospect of demonstrating that his Code rights were breached by the respondent.

ORDER

20The Application is dismissed.