The application by a corporation to dismiss, for delay, a prospective employee’s application for judicial review of a human rights tribunal’s decision was allowed where the prospective employee did not file for a judicial review until 26 months following the decision and had no cogent explanation for the delay

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights complaints – Discrimination – Judicial review – Delay – Limitation of actions

De Pelham v. Ontario (Human Rights Tribunal), [2011] O.J. No. 5459, 2011 ONSC 7006, Ontario Superior Court of Justice, November 25, 2011, A. Hoy J.

Mytrak Health Systems Inc. (“Mytrak”) was a small technology company which employed 42 individuals. In July 2008, Mark De Pelham (“De Pelham”) applied for a customer service position with Mytrak. De Pelham had previously been charged with two criminal offences. Mytrak conducted a background check and learned of the charges. Mytrak put forward evidence that it has hired persons with criminal records in the past and chose not to hire De Pelham on the basis of his failure to disclose the charges, as opposed to the fact of the charges. The Human Rights Tribunal of Ontario (“HRTO”) dismissed De Pelham’s matter. De Pelham did not issue his notice of application seeking judicial review until April 29, 2011, more than 26 months after the decision.

The Court found that it was plain and obvious that the application for judicial review should be dismissed for delay. The Court noted that an applicant must commence and perfect his application for judicial review in a timely manner and the failure to do so is an independent basis for the denial of the application, regardless of the merits of the case, citing Balanyk v. Greater Niagara General Hospital, 2002 Carswell 1192 (Ont. Div. Ct.).

In this case, De Pelham had no cogent explanation for his delay. He argued that he was frustrated and lacked focus. However, the Court noted that De Pelham had a four-year university degree and had twice run for Parliament. In the time lapse between the decision and the filing for judicial review he had proceeded to a full hearing on other matters. Therefore, the Court concluded that he was capable of bringing an application for judicial review. In all the circumstances, the Court held that the application for judicial review should be dismissed for delay and awarded costs against De Pelham.

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