Cain v. City of Toronto et al., 2011 ONSC 2578

Citation and Court Information

CITATION: Cain v. City of Toronto et al., 2011 ONSC 2578

DIVISIONAL COURT FILE NO.: 317/10

DATE: 20110429

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. WILSON, SWINTON AND LEDERER JJ.

BETWEEN:

KIRK CAIN

Applicant

– and –

CITY OF TORONTO AND HUMAN RIGHTS COMMISSION OF ONTARIO

Respondents

Henryson Nwakobi, for the Applicant

Heather Crisp, for the City of Toronto

Margaret Leighton, for the Human Rights Commission of Ontario

HEARD: April 29, 2011

J. Wilson J. (ORALLY)

REASONS FOR JUDGMENT

[1]

Introduction

On May 21, 2010 the Human Rights Tribunal of Ontario dismissed the application of Kirk Cain initiated January 26, 2010 for unreasonable delay.

2The applicant seeks judicial review of this decision.

3Section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the Code) provides:

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. 2006, c. 30, s. 5.

Late applications

34.(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. 2006, c. 30, s. 5.

[4]

Background

The events that underpin the complaint arose in 1994. The applicant who was an employee of the City of Toronto was dismissed on August 30, 1994 from his employment for allegedly assaulting his supervisor. The union grieved his dismissal to an arbitration board. The grievance was dismissed in 1996. The application to the Ontario Labour Relations Board was dismissed in 1999. The criminal proceedings brought against the applicant for assault were withdrawn in 1995.

5On March 20, 2010 the Tribunal wrote to the applicant advising him that his application was out of time. The complaint relates to events that took place fifteen years ago, and the Code contemplates that applications should be brought within one year of the last act of discrimination. The onus is upon the applicant to explain why the delay was incurred in good faith, and to explain why the applicant believes that no one will be prejudiced by the delay. The Tribunal invited the applicant to respond.

6The applicant responded to the March 20, 2010 letter on April 19, 2010.

[7]

Decision Under Review

The Tribunal dismissed the application for delay. The Tribunal concluded in paras. 5, 6, 7 and part of 8 of its Reasons as follows:

5. The submissions indicate that the delay was caused because the applicant was exploring other avenues in an attempt to resolve matters.

6. This explanation does not account for the delay from 2005, when he made the last such contact, to 2010 when he filed the Application.

7. The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an Application: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

8. …In this case, the applicant has provided no evidence to suggest that the delay was incurred in good faith. A delay of fifteen years would necessarily result in prejudice to others affected by the Application because it would be very difficult to find relevant documents and witnesses. Any witnesses would find it difficult to recall events that occurred so long ago.

[8]

Standard of Review

The standard of review of decisions of the Tribunal interpreting the Code is reasonableness (See Shaw v. Phipps (2010) ONSC 3884 (Div. Ct.) at paras. 41 and 42).

[9]

Analysis

The Tribunal reasonably concluded that there would be substantial prejudice to the respondent because of the lengthy delay, as this case would clearly turn on findings of credibility.

10The decisions of Blencoe v. British Columbia Human Rights Commission 2000 SCC 44, [2000], 2 S.C.R. 307 and Guthro v. Westinghouse Canada Inc. (No. 2) (1991), 15 C.H.R.R.D/388 (Ont. Bd. Inq.) referred to by the applicant do not apply in this case. This case turns on the application and interpretation of a specific provision – that is section 34(2) of the Code which grants the Tribunal the discretion to accept late applications in certain circumstances. The cases referred to by the applicant raise issues of breach of natural justice resulting from inordinate delay in processing a claim.

[11]

Disposition

For these reasons, the application for judicial review is dismissed without costs.