Starting today, Wise Law Blog will review each week's important decisions from the Ontario Human Rights Tribunal.
We'll break the decisions down into two categories:
- Substantive rulings on cases of discrimination; and
- Those touching upon strictly procedural matters
In this case, the Tribunal deals with one discrete procedural issue: dismissal for delay.
Under the Ontario Human Rights Code, an application under Section 34 – for example, alleging discrimination in employment must be filed within one year unless there are good faith reasons for the applicant having failed to file his Application within the time limits set out in the Code, and such an extension does not cause substantial prejudice to the respondent.
The applicant, a man alleging discrimination against his employer on the ground of disability, had been terminated in 2002 by his employer who concluded that the applicant’s employment had been frustrated as a result of the applicant’s permanent and total disability. The applicant submitted that he had good faith reasons for filing his application late, specifically in 2009.
The tribunal rejected the good faith reasons put forward by the applicant.
First, the fact that he may only have learned of his rights in 2009, the year he made the application, was not a valid reason since ignorance of one’s right alone is no excuse for not filing the required time frame set in the Code. To raise this sort of defence, an applicant must also show that they had no reason to make enquiries about those rights, which he failed to establish.
On the latter point, an argument that relied on the doctrine of reasonable discoverability, the fact that applicant had received an ergonomist report in 2009 that confirmed his suspicion that one of the jobs that he had been assigned in 2001 was beyond his medical limitations did not mean that his belief that he been unfairly treated crystallized at that point. The Tribunal held that there was ample evidence in this case that the applicant came to this realization far earlier in time, and that the medical report had not helped him discover his case but rather discover the extent of evidence in support of it.
As there were no valid reasons put forward by the applicant to establish "good faith", the Tribunal found it unnecessary to consider potential prejudice to the respondent that such an allowance might engender, dismissing the case for delay.
In this case, the applicant filed an Application under section 34 of Code alleging discrimination on the basis of gender, age, and sexual orientation. The major procedural matter at issue was the Tribunal’s jurisdiction: could the Tribunal rule on a matter involving an employee who had been terminated by a federally regulated chartered bank.
1. She was told by a supervisor to seek family counseling;
2. She was contracted at home by management in a manner that was intimidating;
3. She was suspended multiple times and received numerous written warnings.
Also weighing against the applicant was that the many independent investigations had been undertaken into the applicant’s complaints of racial discrimination but none had revealed any such misconduct. Instead they revealed an employee with weak performance and productivity levels, who had displayed very confrontational behavior in the workplace.
1. That it was not improper for a supervisor who observed an employee displaying a pattern of aggressive and hostile behavior to recommend family counseling;
2. That it was not unusual for an employee, like the applicant who does much of her work at home, to be contacted by her superiors to discuss work-related issues;
3. That suspensions and written warnings were justified responses to the applicant’s poor work performance and unexplained hostile behavior.