HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
April Wolfe Applicant
-and-
The Corporation of the City of Kitchener, Doug Hergott and Karen Gincrich Respondents
Interim DECISION
Adjudicator: David Muir Date: August 13, 2009 Citation: 2009 HRTO 1260 Indexed as: Wolfe v. Kitchener (City)
WRITTEN SUBMISSIONS BY
April Wolfe, Applicant: Paul Mennie, Counsel
The Corporation of the City of Kitchener, Doug Hergott and Karen Gincrich, Respondents: Paula M. Rusak, Counsel
1This is an Application filed under section 53(5) of the Part IV of the Human Rights Code, R.S.O. 1990, and c. H. 19, as amended (the "Code") on February 26, 2009. This Interim Decision deals with a preliminary request of the respondents to narrow the scope of this Application. The respondents take the position that it should not be required to respond to an amendment to the original human rights complaint on the basis primarily that the amendment was out of time when it was accepted by the Commission in May 2008.
2The parties provided their submissions in accordance with the schedule set out in the Tribunal's letter of July 16, 2009. The parties were invited to request the opportunity to make oral submissions. There was no request to hear oral submissions and I find it appropriate to deal with this issue on the basis of the written submissions.
3The original human rights complaint was filed with the Ontario Human Rights Commission in February 2005 (the "original complaint"). In the original complaint, the applicant alleged she was discriminated against in employment on the basis of sex. The applicant alleges that she was denied a supervisory position in December 2004 because she is female. In May 2008, the Ontario Human Rights Commission appears to have accepted an amendment to this complaint (the "amendment").
4The amendment to the original complaint adds the prohibited ground of disability. The amended particulars are that the applicant was injured at work and that beginning on March 17, 2003 the employer began failing in its obligation to accommodate her to the point of undue hardship. The applicant alleges that the most appropriate accommodation would have been to award her the supervisory position referred to in the original complaint. The applicant alleges that the modified duties as a typist which she performed were not appropriate and that the employer failed to provide her with sufficient training to succeed in this work.
5Based on other material filed by the parties, it appears that the employer determined in early 2005 that the applicant was not qualified for the work it had assigned her as an accommodation and she was laid off effective February 2, 2005 because the employer determined that it had no other work that met the applicant's restrictions. Eventually it was determined by the WSIB that the applicant was eligible for a labour market re-entry program which she began in May 2006. By letter dated December 8, 2006, the applicant's employment was terminated effective February 2, 2007.
6On December 20, 2006, the applicant's representative wrote a letter to the Commission attaching a copy of the termination letter and asking the investigator to include it in the Commission's investigations. In his letter, the applicant's representative questions the apparent policy of the employer to terminate injured employees after a period of time away from the workplace and suggests that the respondents had not accommodated the applicant to the point of undue hardship. The amendment was filed or accepted by the Ontario Human Rights Commission on or about May 14, 2008.
7The Request of the respondents is framed as a request to strike the amendment to the complaint because the new allegations were made many years after the events alleged and are therefore out of time.
8Section 34 of the Code provides as follows:
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.
(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.
9Under section 34, an applicant is prevented from filing an Application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist.
10The applicant states that she is within the one year time period because she raised the issue of the termination of her employment in a letter to the Commission in December 2006. It is said that the Commission agreed to amend the complaint in February 2007 but that there were delays pending a fact finding conference. The only other documentation provided is the amendment itself which as noted above was accepted by the Commission on May 14, 2008.
11The respondents state that the applicant has offered no explanation for these delays and that they would suffer substantial prejudice in having to respond to allegations of a failure to accommodate from March 2003 to February 2005 when the allegation is only raised in May 2008.
12The first question to be answered is whether or not the termination of Ms. Wolfe's employment effective February 2007 is an issue in this Application. The applicant's explanation for the delay assumes that the termination of Ms. Wolfe's appointment is a triggering event for the time limit in section 34. In my view, the termination of Ms. Wolfe's employment is not an issue in this Application because there is no allegation to that effect in the original complaint or the amendment.
13The particulars of the amendment are cast quite generally but it is clear that they are referring to the efforts, allegedly inadequate, to accommodate the applicant between March 2003 and February 2005. The only date specifically referred to is March 17, 2003 when the applicant alleges the failure to accommodate her began. Reference is also made to the position she was not offered in December 2004 which gave rise to the original complaint. The efforts at accommodation ended on February 2, 2005 when the employer determined that it could no longer offer the applicant alternative work and she was laid off. The amendment to the complaint does not allege that the termination of Ms. Wolfe's employment in December 2006 was a further violation of the Code and it makes no reference to the termination.
14The legislative intention as set out in the transition provisions is that section 53(5) applications should be dealt with in an expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and expeditious process. In particular Rule 6.3 states:
Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.
15As indicated above, the amendment makes no reference, even obliquely, to the termination and I find therefore that there is no allegation respecting the termination in the amended complaint. Accordingly. I find that the allegations in the amendment refer to events beginning in March 2003 and ending in February 2005. The amendment was filed in May 2008. The delay from February 2005 to the date of the amendment is in excess of three years.
16Even if the applicant's representative's letter to the Commission on December 20, 2006 could be interpreted as stopping the clock on the limitation period in section 34, it is close to two years from the date the respondent employer took the position that it could no longer provide workplace accommodations to the applicant and her raising any issue of an alleged failure to accommodate her disability.
17The burden of establishing that the factors in section 34(2) exist rests primarily with the applicant. The applicant offered no explanation whatsoever for the delay from February 2005 when the applicant went off work, until December 20, 2006 when she raised for the first time with the Commission an alleged failure to accommodate her. The applicant also makes no submissions respecting the prejudice the respondents allege that they will suffer in responding to allegations of a failure to accommodate her appropriately between March 2003 and February 2005.
18I am not satisfied that the factors in section 34(2) exist and find therefore that the respondents need not respond to the allegations set out in the amendment to the complaint dated May 14, 2008.
Dated at Toronto, this 13th day of August, 2009.
"Signed by"
__________________________________
David Muir Vice-chair