The human rights clock has run out on a former PepisCo Canada worker who waited more than two years to file a complaint.
The Human Rights Tribunal of Ontario (HRTO) dismissed the claim after it was found that he had failed to file the application within the legally mandated time frame.
B.G. alleged that PepsiCo Canada had discriminated against him on the basis of disability, ultimately leading to his constructive termination on Aug. 2, 2018. He argued that a series of incidents, including being denied the opportunity to apply for an internal job while on medical leave, being forced to undergo an Independent Medical Evaluation (IME), and the unauthorized sharing of his medical history by the company’s employee assistance plan provider, culminated in his termination.
B.G. filed his complaint with the HRTO on March 3, 2021, over two-and-a-half years after his employment was terminated. Under the Human Rights Code, applications must be filed within one year of the last alleged discriminatory incident. Despite this, B.G. did not submit his complaint until more than two years had passed.
In his complaint, B.G. detailed a range of actions taken by PepsiCo Canada that he believed were discriminatory. On Dec. 6, 2016, while on medical leave, B.G. was not notified of an internal job posting, which he claimed prevented him from participating equally in employment opportunities. Additionally, on Feb. 14, 2018, his employer demanded that he submit to an IME without justification. B.G. also cited an invasion of privacy that occurred on May 25, 2018, when he received correspondence from the company’s employee assistance plan provider pertaining to his medical history. Ultimately, on Aug. 2, 2018, he claimed his employment was “constructively terminated due to disability,” describing the employer’s reasoning as “flawed, biased and the very definition of ableism.”
However, the tribunal was unpersuaded by B.G.’s explanations for why the complaint was filed late. The HRTO noted that B.G. first contacted PepsiCo Canada’s Human Resources department on Dec. 18, 2020, to challenge the circumstances of his termination, more than 28 months after the event. When this internal complaint was dismissed, B.G. then turned to the HRTO, believing it to be his last option for seeking redress.
The HRTO, however, reiterated that the one-year limitation period applies regardless of whether the applicant is pursuing other avenues for resolution. “Applicants are expected to abide by the one-year limitation period even if they are pursuing other avenues of redress,” Adjudicator Will McNair wrote in the decision, referencing several prior tribunal rulings that established this principle.
Despite being given the opportunity to provide a good faith explanation for the delay, B.G. did not offer any satisfactory reason. Instead, he restated and elaborated upon the initial allegations that were already considered untimely. “The applicant has not provided a good faith explanation for delay,” McNair concluded, adding that because he was not convinced the delay was incurred in good faith, the tribunal did not need to consider whether PepsiCo Canada would have been prejudiced by the late filing.
The tribunal’s decision underscores the strict interpretation of the one-year filing deadline under the Human Rights Code. Section 34 of the Code requires applications to be filed within one year after the last incident to which they relate. The HRTO only has jurisdiction to hear cases outside this limitation period if the delay is shown to be incurred in good faith and if there is no substantial prejudice to any person affected by the delay.
For more information, see Giokaris v. PepsiCo Canada, 2024 HRTO 1061 (CanLII).
