Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Handorf

Applicant

-and-

Babcock and Wilcox Canada Ltd. and United Steelworkers Local 2859

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: August 27, 2009

Citation: 2009 HRTO 1343

Indexed as: Handorf v. Babcock and Wilcox Canada

Appearances

Richard Handorf ) On his own behalf

Babcock and Wilcox Canada ) Veronica A. Kenny, Counsel

United Steelworkers Local 2859 ) Mark Rowlinson, Counsel

1The applicant filed an Application on November 6, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2The respondents requested that the Application be dismissed on the basis that it was filed beyond the one-year time limit prescribed in s. 34 of the Code, and under s. 45.1 of the Code, on the basis that another proceeding has appropriately dealt with the substance of the Application. A hearing was held on June 26, 2009 to determine these issues.

BACKGROUND

3The following facts are based on the materials filed by the parties, the testimony of the applicant, and submissions made by the parties during the hearing. Mr. Handorf began his employment with Babcock and Wilcox Canada (“Babcock”) on August 22, 1994 as an Automatic Cut-Off Operator in the Machine Shop. On September 29, 1997, he became a C Machinist, Level 2.

4In or around 1996, the respondent union filed a grievance on Mr. Handorf’s behalf alleging harassment by Jack Brydson, a workplace manager and former union executive member. Following an unsuccessful mediation procedure, which included an investigation by the mediator, multiple site visits and interviews with witnesses, the parties agreed to appoint an arbitrator pursuant to the Labour Relations Act, 1995, S.O. 1995, C-1.

5The grievance was heard by Arbitrator Frank Reilly concurrently with a harassment grievance by Mr. Brydson against Mr. Handorf. In a 46-page decision, dated November 22, 2003, Arbitrator Reilly found neither employee guilty of harassment. He wrote at p. 44:

The situation at hand has been developing over an extended period of time. The relationship between Mr. Handorf and Mr. Brydson has deteriorated over the years to the point we now find ourselves. It is apparent that over this period of time perceptions have emerged that are best described as illusionary and not violations of the Human Rights Code.

6Arbitrator Reilly went on to find that Mr. Handorf had been properly represented by his union, and that there was insufficient evidence to establish that the employer had discriminated against him. The arbitrator recognized the broken relationship between Mr. Handorf and Mr. Brydson, and directed the respondent company to take certain steps to accommodate Mr. Handorf, including removing Mr. Brydson from any management control over Mr. Handorf.

7The arbitrator further found Mr. Handorf’s behaviour “deleterious to the well being of himself and potentially his fellow employees and Supervisors” (p. 44). He urged Mr. Handorf to obtain psychiatric care and assistance. Arbitrator Reilly remained seized of the matter in the event that any further disputes arose on the issues.

8In correspondence dated December 1, 2003, the company advised Mr. Handorf that he could not return to work until he produced a medical report declaring him fit to do so. By correspondence dated December 7, 2003, the union requested the arbitrator to order Babcock to permit Mr. Handorf to return to work. Instead, Arbitrator Reilly referred the parties to his associate, Gillian Dell, who conducted a mediation which led to the signing of Minutes of Settlement, dated December 19, 2003. The Minutes provided, among other things, that Mr. Handorf would seek a diagnosis from a medical professional and remain out of the workplace until it was provided. The Minutes also provided that Babcock would pay Mr. Handorf his full wage entitlement until he gained coverage under the company benefit plan.

9In 2004, Mr. Handorf underwent a psychiatric assessment with Dr. S.W. Dermer. The assessment was forwarded to Mr. Handorf’s family doctor, who recommended that Mr. Handorf stay off work pending further treatment. In or around September 2004, Maritime Life ceased paying disability payments to Mr. Handorf on the basis that he had failed to provide sufficient documentation to substantiate his claim. At around the same time, Mr. Handorf testified his health began to deteriorate significantly and he experienced a nervous breakdown. He was so sick he could hardly get out of bed, and did not know what was wrong with him.

10On or about December 1, 2004, the union filed a grievance regarding the termination of Mr. Handorf’s disability benefits.

11On March 22, 2005, Babcock terminated Mr. Handorf’s employment on the basis that he had not provided evidence of his compliance with the directions laid out in the psychiatric assessment performed by Dr. Dermer. The company further relied on the claim that Mr. Handorf had not provided sufficient documentation justifying his continued absence from work.

12On or about March 28, 2005, the union grieved Mr. Handorf’s termination of employment.

13In April 2005, Mr. Handorf testified he saw a rheumatologist and finally received a medical diagnosis. In June 2005, he stated that he provided medical documentation to his union.

14Both of Mr. Handorf’s grievances proceeded to a hearing before Arbitrator William Kaplan on August 31, 2006, January 24 and March 27, 2007. In a decision dated April 3, 2007 (“Kaplan award”), Arbitrator Kaplan dismissed Mr. Handorf’s grievances and upheld the termination of his employment. Arbitrator Kaplan found that Mr. Handorf had been the master of his own misfortune by failing to adhere to terms to which he had agreed, neglecting to follow medical advice and refusing to cooperate in producing the necessary documentation to preserve the employment relationship. The arbitrator expressly found no violation of the Code. He concluded that the termination of benefits was justified and the termination of employment was with “ample just cause”.

15Mr. Handorf testified that the union never provided him a copy of the Kaplan award and that he first saw it after filing his Application with the Tribunal. On cross-examination, Mr. Handorf acknowledged that he had received a phone call from Mr. Smith, a union representative, some time in April or May 2007. They discussed the Kaplan award and Mr. Smith read out portions of the decision. Mr. Handorf testified that he understood that he had lost and that his grievances were dismissed. In response to a question from union counsel, Mr. Handorf stated that he had no recollection of whether Mr. Smith had advised him that a copy of the Kaplan award was available for him to pick up at the plant.

16At the end of July 2007, Mr. Handorf secured full-time employment elsewhere. The work involved heavy lifting and physical exertion. He testified that the work caused him a lot of pain, but that he persevered until he was laid off in September 2008 due to a shortage of work. As a result of the protracted pain, about which Mr. Handorf testified without relying on any medical evidence, as well as a seriously ill father who died in December 2008, Mr. Handorf described this period of time as one of tremendous hardship and difficulty.

17On November 6, 2008, Mr. Handorf filed the Application. He testified that prior to that, he was in no position to take on any further stress or obligations, including turning his mind to filing an Application with the Tribunal.

18Mr. Handorf stated that this Application is not intended to remedy the past, but rather to secure his future, which he described as “bleak”, given his worsening medical issues. He holds his former employer and union accountable for his current hardships and poor health. He seeks 2.5 million dollars in damages.

Analysis

19The respondents asked for dismissal of the Application. Counsel for both respondents argued that Mr. Handorf is out of time within the meaning of s. 34(1)(b) of the Code and asked that I refuse to find that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, within the meaning of s. 34(2).

20The respondents alternatively asked me to dismiss the Application on the basis of s. 45.1, which provides for dismissal where the Tribunal is satisfied that another proceeding has appropriately dealt with the substance of the Application. Further alternatively, the respondents argued that the Application should be dismissed for failing to disclose a prima facie case.

Delay

21Section 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 release; 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.

22The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in s. 34(2) exist. Union counsel argued that the limitation period in the Code is clear, and where the facts as alleged do not disclose any events occurring within the previous one year, as a matter of jurisdiction, the Tribunal may not proceed with the Application.

23In support of this argument, union counsel noted that the applicant filed his Application on November 6, 2008, more than four years after most of the events occurred, and 19 months after Arbitrator Kaplan’s award of April 3, 2007, which would be the latest possible date that could be considered the “last incident” within the meaning of s. 34(1)(b). Union counsel argued that on the face of these facts alone, the applicant failed to satisfy s. 34 of the Code.

24Mr. Handorf disputed the respondents’ contention that the events described in the Application were significantly out of time. He argued that, while many of the events occurred while he was still working, there was additional discriminatory treatment arising out of his termination in 2005, including the grievance procedures. Further, he argued that, because the union failed to provide him a copy of the Kaplan award of April 2007, the discrimination was ongoing up to present.

25The enquiry under s. 34 does not end upon the factual determination alone that no alleged incidents occurred within the previous year. Section 34(1) must be read in conjunction with s. 34(2), which provides the Tribunal with the discretion to assess the good faith of the applicant and the prejudice to any affected person of waiving the time limit. Only after a complete consideration of s. 34 as a whole, and its application to the facts at hand, can the Tribunal decide whether to dismiss for delay.

26Most of this Application concerns events that occurred more than four years before it was filed. Even if the alleged discrimination also extends to the union’s processing of the applicant’s grievance, the last incident arguably covered by the Application was in April 2007. Further, I am satisfied that, notwithstanding whether Mr. Handorf obtained a full copy of the arbitration award, he was made aware of its basic contents and conclusions by way of a telephone call with his union representative in April or May 2007.

27When the Application was filed in November 2008, it was beyond the one-year time limit stipulated in s. 34(1). It is therefore necessary to consider the factors under s. 34(2).

Good Faith

28The respondent company argued that Mr. Handorf had failed to demonstrate good faith. Company counsel relied on Tribunal decisions in which applicants alleged stress and/or mental illness and were deemed not to have demonstrated good faith: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong, 2009 HRTO 110; Dwyer v. Chrysler Canada, 2009 HRTO 247. In Mr. Handorf’s case, counsel argued that his explanation was insufficient, his evidence was vague and that any claim of illness was not supported by medical documentation.

29Mr. Handorf submitted that, even accepting April 2007 as the date of the last incident, the delay that ensued was incurred in good faith. In the seven months past the April 2008 deadline, he argued he was unable to pull himself together given the physical toll that his new job was having on his body and the psychological toll of dealing with his father’s declining health and eventual death. As a consequence of the personal hardship he was experiencing, Mr. Handorf argued that he was incapable of turning his mind to filing an Application with the Tribunal.

30I am not persuaded that the delay in filing the Application was incurred in good faith. Mr. Handorf relied on broad assertions of work-related, medical and emotional factors, but adduced no supporting evidence. His explanation was completely lacking in detail, and I do not find it credible. Even if, for part of the time between April 2007 and November 2008 he was busy, tired and emotionally drained, I am not satisfied that he was incapable of completing an Application within the one-year deadline established by the Code.

31On the basis of the evidence, I am unable to find more than inconvenience preventing Mr. Handorf from filing an Application. Inconvenience, even severe inconvenience, is not sufficient to demonstrate that delay was incurred in good faith. In support of this conclusion, in addition to the cases cited by respondent counsel, I rely on a number of recent decisions of the Tribunal applying s. 34(2): see Lutz v. Toronto (City), 2009 HRTO 1137; Klein v. Toronto Zionist Council, 2009 HRTO 241; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

32It is unnecessary for me to consider the question of prejudice.

33It is also unnecessary for me to consider the respondents’ arguments with respect to dismissal under s. 45.1 or for failing to disclose a prima facie case.

ORDER

34The Application is dismissed.