Bennett v. Noble Corporation, 2017 HRTO 961

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Bennett

Applicant

-and-

Noble Corporation

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 28, 2017

Citation: 2017 HRTO 961

Indexed as: Bennett v. Noble Corporation

APPEARANCES

Christopher Bennett, Applicant

Holly Robertson, Paralegal

Noble Corporation, Respondent

David Turner, Counsel

Introduction

1This Application, filed on January 10, 2017, alleges reprisal and discrimination with respect to employment because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that fellow employees made discriminatory comments to him about his race and colour, and that the last event occurred in September 2015.

2The respondent filed a Request for an Order During Proceedings (“Form 10”) on April 7, 2017 requesting that the Application be dismissed because it was filed more than one year after the last alleged incident of discrimination. The applicant filed a Response to a Request for an Order During Proceedings (“Form 11”) on April 18, 2017.

3By Case Assessment Direction dated May 8, 2017 the Tribunal advised that because the Application was filed more than a year after the last incident of alleged discrimination set out in his Application, the Tribunal would hold a preliminary hearing to hear submissions with respect to whether this Application should be dismissed as untimely. 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

4The applicant’s lawyer explained that after the last alleged discriminatory event occurred in September 2015 the applicant thought he filed an Application with the Tribunal at the beginning of October, 2015.

5His lawyer submitted that the applicant received a telephone call from someone in mid-October 2015 who told him about the Human Rights Legal Support Centre (“HRLSC”). He advised the caller he did not need its services because he already had hired his first lawyer. The applicant’s first lawyer sent the respondent a letter in October 2015.

6The applicant’s lawyer submitted that after he retained his first lawyer, the applicant repeatedly asked him if he had made an Application pursuant to the Employment Standards Act, 2000 (“ESA”) or to the Tribunal on his behalf. When he did not respond, the applicant terminated his first lawyer.

7The applicant, or someone on his behalf, filed the ESA claim on June 22, 2016. A decision was rendered on January 5, 2017, and the applicant filed an appeal of that decision on January 17, 2017.

8The applicant said he “re-filed” this Application on January 10, 2017. The applicant’s lawyer confirmed with the Tribunal that the applicant had not filed any other Applications with the Tribunal. The applicant now believes he may have filed his October 2015 Application with the Canadian Human Rights Tribunal, and it was that Tribunal that told him about the HRLSC. The applicant did not take any steps between October 2015 and January 2017 because he did not think it was unusual not to have received any response from the Tribunal in that time period.

9The applicant argued he did not know the law and did not know there was a limitation period to file this Application. Simultaneously he argued he did know there was a limitation period, but did not know when that limitation period began to run. In addition, because the Application form stated the Tribunal could consider a late Application the applicant filed it.

10In summary, the applicant argued he acted in good faith by hiring someone to represent him in October 2015, applying to the Tribunal (he thought) in October 2015, filing a claim under the ESA and also “re-filing” this Application in January 2017.

11The respondent’s lawyer dismissed the applicant’s arguments as fabricated. He argued that the applicant never raised these reasons until the preliminary hearing, and these reasons for his delay are very different than what he included in his Application, in which he stated he had a case before but was wrongly steered in a different direction.

12The respondent submitted the applicant was represented by a lawyer at the latest by October 23, 2015 when the first lawyer sent the respondent a letter. In addition, either the applicant or someone on his behalf filed an ESA claim in June 2016 that included facts very similar to those in this Application. The ESA decision was rendered on January 5, 2017 and no violations were found. Five days later, on January 10, 2017 the applicant filed this Application, which was 16 months after the applicant was last employed by the respondent, and 15 months after he retained counsel who raised human rights allegations. The respondent submitted it appears the applicant waited to see how the ESA claim would unfold before filing this Application.

13The respondent argued the applicant provided no good faith reason for his delay in filing the Application, and the onus to do so is on him. He argued that the applicant’s argument do not meet the onus. He submitted that the applicant could have, but did not, file any documents to support his arguments.

Analysis and Decision

14Section 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.

15The 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.

16In 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). 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 inquiries about options for pursuing the alleged wrong.

17The 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.

18In this case, the last incident occurred approximately 16 months before the applicant commenced this Application. In my view, he has not satisfied the onus on him to provide a good faith reason for the delay.

19The applicant obviously inquired about his rights within a month of the last incident, and clearly was not ignorant of his rights as he was represented by a lawyer.

20The applicant filed an Application under the ESA in June 2016. With respect to the applicant’s submission that he thought he may have filed with an Application with the Canadian Human Rights Tribunal in October 2015, I do not find this credible, given that he not only provided nothing to support his position, other than the bald assertions he made for the first time at the preliminary hearing.

21In addition, given the timing of the filing of this Application, it appears to me more likely than not that the applicant did not file this Application until January 10, 2017 because he found out that his ESA claim was not successful. While he did not argue that he waited until this proceeding finished to file this Application, it appears this is exactly what he did. Waiting until another proceeding is complete to file an Application is not justification for delay in filing.

22I find the applicant has not satisfied the onus on him of establishing a good faith reason for the delay in filing the Application. As such, there is no reason for me to consider the issue of prejudice.

Order

23The Application is dismissed for delay.