Boyer v. Sears Canada, 2009 HRTO 1084

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Boyer Applicant

-and-

Sears Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: July 21, 2009 Citation: 2009 HRTO 1084 Indexed as: Boyer v. Sears Canada

Appearances

Paul Boyer, Applicant ) On His Own Behalf Sears Canada, Respondent ) Linda Plumpton, Counsel

1This is an Application filed on November 15, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in which the applicant alleges that his employer violated his right to equal treatment with respect to employment without discrimination because of age.

2The purpose of this Interim Decision is to determine the respondent’s Request for an early dismissal of the Application (“Request”) on the basis that it was filed outside the time for bringing an Application.

BACKGROUND

3The respondent provides benefits to eligible employees upon retirement. These include health, insurance and dental benefits set out in the respondent’s Health and Benefit Plan (“Plan”).

4In order to be eligible to receive such benefits, employees must meet the Plan’s eligibility criteria and must:

a. have been hired before January 1, 2001;

b. be at least 55 years of age; and

c. have a minimum of 20 years of full-time continuous service.

5On February 5, 2007, the respondent’s Board of Directors adopted a resolution amending the Plan. As of January 1, 2009, employees are eligible for benefits only if they have achieved all of the Plan’s eligibility criteria by December 31, 2008. The respondent states that it provided written notice of the amendments to all of its employees on February 7, 2007.

6The applicant is a long-time employee of the respondent. He states that, by December 31, 2008, he met criteria (a) and (c), but that he had not reached 55 years of age. He will turn 55 on August 26, 2009.

7The respondent requests an early dismissal of the matter. It argues that in this case the one-year period in which to make an application set out at s.34(1)(a) of the Code runs from February 7, 2007, the date the amendments to the Plan were announced to employees. On this basis, the respondent contends that the Application, which was filed on November 15, 2008, falls outside the limitation period.

8In an Interim Decision, 2009 HRTO 625, I decided it was appropriate to deal with the Request as a preliminary matter. A telephone conference hearing was scheduled and the parties were invited to provide further written material, if any, by July 3, 2009.

9The applicant filed further submissions as well as a letter which he states he initially gave to the respondent on June 18, 2007. In this letter, the applicant complains that the changes to the Plan are unfair and arbitrary. He states that the letter was never responded to by the respondent. The respondent did not file any further material.

10The telephone conference hearing was held on July 17, 2009.

THE ISSUES

11The Request raises the following issues:

a. Was the Application filed within one year of the incident to which the Application relates?

b. If the Application was filed after the expiry of that time limit, was the delay incurred in good faith and will substantial prejudice result to any person affected by the delay?

ANALYSIS

12Section 34 of the Code states:

(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.

13Thus, section 34 of the Code requires applications to the Tribunal to be made within one year of the last incident of alleged discrimination unless the applicant can show the delay was incurred in good faith and there will be no substantial prejudice to any respondent.

Was the Application filed within one year of the incident?

14The principal issue in this case is whether the incident which gave rise to the Application was:

a. the notice the respondents provided to employees on February 7, 2007; or

b. the coming into effect of the changes to the plan on December 31, 2008.

15The respondent urges me to conclude that it is the former. It argues that the applicant had a year from February 7, 2007, to complain of the changes to the plan, that the employer deliberately provided substantial notice of the change to its employees and that the applicant, like the respondent’s many other employees, had ample opportunity to raise the issue within the appropriate time frame.

16When questioned about whether limitation periods generally run from the point the discrimination or harm occurs, respondent’s counsel encouraged me to follow what she referred to as the employment law line of authority. While she did not refer me to any specific case law, she argued that in this line of authority, the date the employer announces the proposed change triggers the limitation period. She argued that to conclude otherwise would be to discourage employers from providing employees with advance notice of their intended changes. She submitted that these circumstances do not require a harm-based analysis where damages or harm triggers the limitation period.

17The respondent submitted that limitation periods exist for a reason. They bring stability and certainty and allow potential respondents to plan their affairs without fear that stale claims will be raised against them. In this case, counsel for the respondent argues that the applicant had ample opportunity to raise the issue, that he should have done so between February 7, 2007 (when the proposed changed was announced), and December 31, 2008 (when the changes were implemented). According to the respondent, he had almost two years in which to raise a complaint and it would be unfair and unreasonable for the Tribunal to extend that period.

18The applicant argued that he did complain in his June 2007 letter to the respondent, but that it was never responded to. He submits, however, that he did not attempt to file an application under the Code until November 15, 2008.

19I have difficulty accepting the respondent’s arguments. The line of reasoning it proposes would require me to conclude that an expressed intention to allegedly discriminate gives rise to a cause of action and that the time limit for filing an application may actually expire before any harm occurs. In fact, as I understand the respondent’s argument, that might have been the case in these circumstances.

20In my view, the human rights context is distinct from the employment line of cases referred to generally by the respondent. The latter circumstances involve a contractual arrangement between parties. I would comment without concluding that, in strictly employment law terms, where one party is seeking to amend the terms of the contract, it may be appropriate to provide a period of notice. I do not, however, see how that notice period affects the limitation period under the Code, nor do I feel it would be appropriate for respondents to define limitation periods based on the notice they provide to potential applicants.

21I conclude that, for the purposes of section 34 of the Code, the alleged incident of discrimination occurred on January 1, 2009, when the change in the eligibility criteria for the Plan came into effect. As a result, the Application was filed within the time limit set out at section 34 of the Code, and the respondent’s Request is dismissed.