Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ann Imrie-Howlett Applicant

-and-

Peel District School Board and Elementary Teachers’ Federation of Ontario Respondents

DECISION

Adjudicator: Alan Whyte Date: August 27, 2009 Citation: 2009 HRTO 1339 Indexed as: Imrie-Howlett v. Peel District School Board

1This Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), was filed on November 18, 2008, and alleges discrimination in employment on the ground of disability. The respondent Peel District School Board (“the Board”) is the former employer of the applicant. The respondent Elementary Teachers’ Federation of Ontario (“the Union”) was at all material times the bargaining agent for the applicant.

2In their Responses, the respondents both raised the issue of timeliness of this Application. Accordingly, in its Interim Decision Imrie-Howlett v. Peel District School Board, 2009 HRTO 182, the Tribunal directed the parties to make submissions pertaining to the timeliness issue and, in particular, the criteria set out in section 34 (2) of the Code which relate to the discretion of the Tribunal to permit the filing of applications beyond the one year limitation which is found in section 34 (1) of the Code. All parties filed submissions and a telephone conference was held on July 9, 2009, in order to secure clarification of the submissions and to obtain certain additional information which the Tribunal required in order to determine the timeliness issue.

BACKGROUND

3As the sequence of events in this matter is important over the timeframe in question, I will set out below a chronology of the facts:

• 1978 – the applicant commences her employment as a teacher with the Board.
• December 1997 – the applicant is diagnosed with major depression. This was the commencement of medical treatment of the applicant by both her family physician and her psychiatrist(s), which is ongoing. Significant points of time in the course of that treatment will be referred to below in this chronology.
• December 1997 to January 1998 – the applicant is off work for medical reasons.
• January to May 1998 – the applicant worked as a teacher.
• Fall of 1998 – the applicant is off work for medical reasons (the length of the medical leave is not clearly defined in the materials).
• October 1998 – negotiations between the Board and the Union result in a new collective agreement which, among other things, affected the provisions relating to the calculation of the retirement allowance, effective January 1, 1999. A communication is sent by the Union to its members and a ratification meeting is held with the membership.
• January 1999 to September 1999 – the applicant is at work.
• August 1999 – retroactive payments begin to appear on the applicant’s paystub which brings to her attention the fact that there is a new collective agreement in force.
• September 1999 to January 2000 – the applicant is off work for medical reasons.
• prior to December 2000 – the applicant speaks to Bob Whitehead, a member of the executive of the Peel Local of the Union, about her concerns that the new collective agreement contained a new formula for the calculation of the retirement allowance, from a calculation based on length of service to one based on the number of sick leave days outstanding at the time of retirement. This was of concern to the applicant as she had consumed much of her sick leave entitlement as a result of the time she was absent due to her disability. Mr. Whitehead suggested to the applicant that she write a letter to the Board setting out her concerns.
• Approximately December 2000 – the applicant writes a letter to the Board regarding the above-mentioned issue (a copy of this letter could not be located by any of the parties).
• December 4, 2000 – the Board writes the applicant to indicate that although the issue is being reviewed by the Union, the provisions as outlined in the collective agreement are currently being followed.
• April 2, 2001 to May 2007 – after starting with a psychiatrist sometime between December 1997 and March 2001, the applicant received treatment, and continues to receive treatment, from Dr. Peter Faux, a psychiatrist. Between April 2001 and May 2007, the applicant saw Dr. Faux 19 times. Throughout this period of time she was on various types and dosages of anti-depressant medicine.
• Prior to December 2001 – the applicant once again writes to the Board setting out her concerns about the above-mentioned issue related to the calculation of the retirement allowance (this letter could not be located by the parties either).
• December 17, 2001 – the Board writes the applicant to indicate that the entitlement to a retirement allowance is a negotiated issue and that the calculation of the amount of that allowance is outlined in the collective agreement.
• January 2002 to April 2002 – the applicant works on a part-time (three days per week) basis.
• April 2002 – the applicant retires from her employment with the Board. She discusses with representatives of the Union whether there is any change in relation to the retirement allowance issue as it applies to her. She is advised that there is no such change. At the time of her retirement, she had no further sick leave entitlement and accordingly was not entitled to receive a retirement allowance.
• September 2002 to June 2003 – the applicant worked part-time (two days per week) for the Board.
• 2003/2004 school year – the applicant worked 11 days for the Board.
• June 2003 to May 2007 – the applicant, based on her own submissions, was a “functioning human being” who worked on a part-time basis as a tutor of learning-disabled/attention deficit students. She participated in activities such as gardening, traveling, sports, etc. She was not reclusive and was not bedridden except for approximately two weeks in 2005.
• 2004/2005 school year – the applicant worked another 11 days for the Board.
• May 2007 – by this time, the applicant's medical condition had improved somewhat, to the point where she could consider pursuing the retirement allowance issue legally.
• August 3, 2007 – the applicant retained her husband, a commercial litigation lawyer, who wrote to the Board and the Union putting forth the applicant's claim for payment of the retirement allowance in the amount of approximately $35,000. This claim was refuted by both the Board and the Union.
• March 31, 2008 – the applicant filed two complaints with the Ontario Human Rights Commission (“the Commission”) asserting her human rights claim. The complaints were withdrawn on June 25, 2008, as the Commission advised the applicant that it would not be able to process them under the old human rights system.
• November 18, 2008 – this Application was filed with the Tribunal.

ISSUES

4The Tribunal's power to hear and determine human rights Applications is based on the Code. Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident in a series of incidents) to which the Application relates. Under section 34 (2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her Application relates only if the Tribunal is satisfied that the delay in filing the Application was incurred in “good faith” and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed. Section 34 reads 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.

5Therefore, the issues to be determined are:

a) was the delay in filing the Application by the applicant incurred in good faith?

b) if so, is there any substantial prejudice to the respondents as a result of the delay?

ANALYSIS

6Before addressing the specific submissions made by the applicant on the good faith issue, it should be noted that in dealing with requests that Applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, sometimes related to the human rights claim itself, that justify exercising the discretion under section 34 (2): see Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. As an example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that the applicant only later discovered evidence which would assist in proving the claim.

7In order to demonstrate her good faith, the applicant put forth three reasons for her delay in making the Application. They will be reviewed and decided individually.

Ignorance of time limit

8The applicant submits that she was not aware that there was a six-month time limit under the Code which was in effect until June 30, 2008, at which time the time limit for the filing of an Application was changed to one year. She submits that although her husband is a lawyer, he is a commercial litigation lawyer, and until mid-2007, he was not involved in labour law or human rights law.

9The respondents assert that the fact that the applicant's husband was a lawyer is relevant to her alleged ignorance of the limitation period under the Code, as it would be a simple matter for her to inquire of her husband what the relevant timeframe for filing a complaint to the Commission was. As a litigation lawyer, the applicant's husband would at least generally be aware of the existence and significance of limitation periods in the law.

10The Tribunal and the courts have found that ignorance of the law is no excuse in matters relating to delay in asserting one’s rights. The Ontario Superior Court found that delay was not incurred in good faith where it was due to wilful blindness to the need to make inquiries about one's rights: Webster v. Webster Estate 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (Ont. S.C.J.) (QL). In Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ont. Ct. Gen. Div.) (QL), the Court stated that “failure to act in ignorance of one's rights may, in some circumstances, amount to “good faith”. However, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make inquiries about those rights”. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held that a delay may be found not to have been incurred in good faith where a party simply says that they were not aware of their rights, and made no inquiries about options for pursuing the alleged wrong.

11In this case, the applicant became aware of the fact that changes had been made to the collective agreement affecting her rights in relation to the retirement allowance by August 1999 at the latest. By late 2000, she was discussing the issue with her Union representative, and went to the extent to write a letter to the Board explaining her situation and asking that her circumstances be taken into account in the calculation of her retirement allowance. She wrote to the Board again in late 2001. Around the time of her retirement in April 2002, she once again made inquiries of her Union representative about her position in relation to the retirement allowance. It appears that, at the latest, April 2002 was the “last incident” for the purposes of calculating the one-year timeframe to file an Application. The provisions of the collective agreement amendment, which had the effect of denying her the retirement allowance, began to affect her adversely at that time, and it was then that the Union confirmed to her that there was nothing further that could be done. In the circumstances, and given that her husband was a litigation lawyer, she ought to have gone to the extent of making an inquiry of the Commission or legal counsel (either her husband or another lawyer) about the amount of time within which she was required to pursue her human rights issues under the Code. Her submission that she was ignorant of that timeframe does not demonstrate good faith in the circumstances.

Reliance on statements of the Board and Union

12The applicant’s second submission in support of her position that her delay was incurred in good faith is that she honestly believed what she was repeatedly told by the Board and by the Union after the collective agreement was changed: that the retirement allowance was a matter that had been negotiated in collective bargaining between the Board and the Union, that the will of the majority was reflected in the collective agreement, that some people win in negotiations and some people lose, and that essentially there was nothing she could do.

13The respondents assert that this position is not supportable. The Board points out that the rejection of the applicant’s approaches to both the Board and the Union should have triggered an inquiry as to whether or not she had any recourse available to her under the Code.

14For the reasons outlined in paragraph 11 above, this submission is rejected. The applicant pursued the issue with the Board and the Union on a number of occasions between 2000 and 2002. By the time of her retirement, it should have been clear to her that she was not going to receive any special consideration from the Board due to the special circumstances under which she had consumed her sick leave entitlement by the time of her retirement, as a result of which she had no entitlement to a retirement allowance. I find that it was unreasonable on the part of the applicant to simply accept the assertions of the Board and the Union at face value, and that the rejection of her claim should have triggered further action on her part, such as the making of inquiries as to her rights under the Code from the Commission or legal counsel.

Disability prohibited the filing of a complaint/Application

15The main submission made by the applicant on the good faith issue was that she was disabled from the point in time that she first discovered the relevant change to the collective agreement, in August 1999, to August 2007, when her claim was first put forward legally. The submission of the applicant was that this prevented her from pursuing the matter legally and in particular prohibited her from filing a human rights complaint/Application in order to assert her claim. In support of her submission, the applicant provided three medical reports (one from her family physician and two from Dr. Faux).

16The respondents submitted:

• that there was ample evidence of the applicant’s ability/capacity to assert her position during the material timeframe;
• that the medical evidence provided by the applicant did not demonstrate that she was incapable of filing a human rights claim;
• that with the exception of the December 1997 to January 1998, fall 1998, and September 1999 to January 2000 timeframes, the applicant was able to teach from August 1999 to April 2002 when she retired, and further, she was able to continue to teach (albeit on a part-time basis) in the subsequent three school years;
• that the applicant waited eight months after her initial August 2007 letter to the respondents to file her first human rights complaint (to the Commission), which was beyond the then applicable limitation period of six months in the Code;
• that the applicant inexplicably waited an additional four months from her withdrawal of her human rights complaint to the Commission (June 2008) to the filing of this Application; and
• that Dr. Faux’s supplementary report in fact supported the respondent's position by stating: “Patients who have symptoms of PTSD often are victims and lose appropriate assertion skills to handle further undertakings. In the case of Mrs. Ann Imrie-Howlett however, I have always been impressed that she is not a victim and that she has the necessary coping skills to be assertive. An example of her positive coping stance is her attempt to regain her retirement allowance”.

17This third submission is rejected. I find that although the applicant was clearly suffering from depression and receiving medical treatment from physicians between August 1999 and August 2007, she was capable of asserting her rights in relation to both the Board and the Union, which suggests that she should have been capable of pursuing her legal rights in relation to her human rights claim.

18The fact that she was able to function as a teacher, albeit mainly on a part-time basis, between 2000 and 2005 also indicates that she was not disabled to the extent that she was not able to function in the workplace. It is difficult to accept that she would not be capable of proceeding with a human rights complaint in the circumstances, especially when she was also functioning in her personal life in the timeframe up to August 2007.

19I find that the medical documentation produced by the applicant in support of her position does not clearly demonstrate that she was incapable of initiating a human rights complaint in the material timeframe. In fact, the portion of Dr. Faux’s supplementary report quoted in paragraph 16 above belies her position and supports the position of the respondents. I do not accept that she was incapable of at least making an inquiry of the Commission or legal counsel with respect to a possible human rights claim.

20There is no satisfactory explanation for the applicant's delay between her counsel's letter dated August 3, 2007, and the filing of her initial human rights complaints on March 31, 2008. Clearly, as of early August 2007 the applicant was capable of pursuing her legal claim in a formal way, yet she did not file her initial complaints until eight months later, which was beyond the then applicable limitation period in the Code. Neither is there a satisfactory explanation for the delay from June 25, 2008, when those complaints were withdrawn and the filing date of this Application, November 18, 2008.

21Overall, the applicant has been dilatory in the pursuit of her human rights claim and I find that the applicant has not met the high onus on her to satisfactorily explain the delay in filing this Application, which I find was not incurred in good faith.

22In light of this finding, it is not necessary for me to address the second issue as to whether or not the respondents have suffered substantial prejudice as a result of the applicant's delay.

23I find that there is no proper basis for me to exercise my discretion under section 34 (2) to extend the time for the filing of this Application, and therefore the Application is dismissed.