Garry Thomas v. Toronto Transit Commission, 2009 HRTO 1582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garry Thomas

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: Eric Whist

Date: September 29, 2009

Citation: 2009 HRTO 1582

Indexed as: Thomas v. Toronto Transit Commission

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 1, 2009. The applicant alleges that the respondent discriminated against him in employment on the grounds of disability, race, colour, ancestry, ethnic origin and record of offences and, in addition, that the respondent engaged in reprisals contrary to the Code.

2The respondent has filed a request asking that the Application be dismissed at a preliminary stage because of the delay in filing of the Application and because another proceeding has appropriately dealt with the substance of the Application. The applicant’s bargaining agent, the Amalgamated Transit Union, Local 113, which the applicant named as an interested party, has also filed a request to intervene. This Decision determines the respondent’s request for dismissal on the basis of delay in the filing of the Application.

Background

3The applicant worked as a track worker for the respondent from June to November 1996 and then again from April 1997 to January 1998. In August 1997 he suffered a workplace injury and was off work intermittently until December 1997 when he returned to modified duties consisting of light janitorial work. The respondent alleges that the applicant did not participate co-operatively in the efforts to accommodate his medical needs (e.g. not providing satisfactory medical documentation, not attending medical treatment) and that the applicant was dismissed on January 19, 1998 based on his overall employment record including poor attendance.

4The applicant grieved this decision and, as a result of a mediated settlement, was offered reinstatement on the condition that he provide the respondent with requested medical documentation by May 15, 1998. This documentation was not provided and the applicant’s dismissal remained in effect. The applicant has not worked for the respondent since 1998.

5The applicant received Workers Safety and Insurance Board (WSIB) benefits following his workplace injury in August 1997. However, these benefits were terminated in January 1998 when the WSIB determined that the applicant was able to perform the modified duties that the respondent had assigned to him.

6The applicant appealed this WSIB ruling (and pursued a number of other related WSIB claims). This appeal was not heard by the Workplace Safety and Insurance Appeal Board (“WSIAT”) until 2007 and 2008. WSIAT dismissed the applicant’s appeal in a decision dated October 23, 2008.

7The Application alleges discrimination based on disability on the basis that the respondent assigned the applicant modified duties that were not suitable because of his physical restrictions. The applicant alleges that it was due to his back injury that he was relieved of his duties. He further alleges that it was discriminatory that the respondent considered his absenteeism when deciding to terminate him because his absenteeism was related to the medical problems he continued to have because of his injuries.

8The applicant alleges discrimination based on race, colour, ancestry, ethnic origin on the grounds that a union representative made derogatory and discriminatory remarks. The applicant, who self-identifies as a man of African descent, states he was asked by this union official during the grievance process in 1998 whether he was a drug dealer or a pimp. The applicant also refers to being subject to offensive comments by a TTC Deputy General Manager during the same period of time such as “you people make me sick” and “you give your people a bad name”.

9The applicant alleges discrimination based on record of offences, alleging that the derogatory comments asking whether he was a drug dealer or a pimp inappropriately suggest that the applicant was a criminal.

10The applicant alleges he was subject to reprisal by the respondent because he was fighting for his benefits and for proper work and because of his decision not to return to medical treatment. He also identifies being assigned modified duties as an act of reprisal by the respondent because these duties caused him further injury.

11The applicant states in his Application that he is seeking compensation for lost wages and wage increase entitlements as well as admission into the union and retraining.

Request to Dismiss

1Section 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) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

2The applicant argues that he filed his Application within one year of WSIAT’s decision of October 23, 2008 and as such he has met the time requirement for filing an Application set out in section 34(1). I disagree. Section 34(1) states that when a person believes that their rights have been infringed under the Code they have a year in which to file an Application in relation to that infringement. The applicant’s Application is in reference to the alleged infringement of his rights by the respondent, the Toronto Transit Commission, not WSIAT. The WSIAT decision does not constitute an incident as described in section 34(1). I find that the relevant incidents to which the Application relates date from 1997 and 1998 and as such the Application does not meet the requirements of section 34(1).

3The issue I must therefore consider is whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice.

4I will first look at the issue of whether the delay was incurred in good faith. The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

12The Application states that the reason for the delay was that the applicant “had to complete WSIB claims/appeals prior to any other ave.” [avenue]. The applicant further states in his Reply to the respondent’s Request to dismiss that the length of time it took for the appeals process was no fault of the applicant’s and that the matter might have been resolved earlier if the respondent had acted with good will.

13The respondents argue that the applicant’s assertion that he had to complete the WSIB appeals process prior to pursuing any other avenue does not constitute a good-faith basis for the delay and that the applicant’s pursuit of WSIB benefits does not justify a failure to file a human rights complaint or application in a timely way.

14I agree with the respondent. The applicant has not provided a reasonable explanation for why he has waited over ten years to file a human rights application. Absent a reasonable explanation for the delay, I cannot conclude that the delay was incurred in good faith.

15The applicant’s allegations, as contained in his Application, refer to discrimination based on race, colour, ethnicity and place of origin and reprisal in addition to disability. The applicant has provided no persuasive explanation for why these concerns needed to await his effort to claim benefits from the WSIB for workplace injuries.

16The Application indicates that the applicant’s concerns about discriminatory treatment based on disability included concerns not only about whether the modified work he was assigned was appropriate-- the subject of his WSIB claim-- but the further significant decision by the respondent to terminate his employment based on, amongst other factors, his failure to attend medical treatment, provide medical documentation and for absenteeism. Why would the applicant need to complete his efforts to claim WSIB benefits before pursuing these stated concerns about why he was terminated?

17The applicant also indicates in his Application that the remedies he is seeking include damages for lost wages and further training, remedies that are quite distinct from those he was seeking through the WSIB process. Again, why would the applicant need to wait to pursue these hoped for remedies until after his WSIB claims were resolved? No explanations were provided for the delay in filing the Application other than the statement that the WSIB process had to be completed first.

18It may be that the applicant believed that he could not pursue both a human rights complaint and a WSIB appeal at the same time although I note the applicant did not state this to be the case. However, the Tribunal has found that ignorance of the law is no excuse in the context of delay in the initiation of a human rights application. 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 their rights.

19I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code. Consequently, it is not necessary to determine whether the respondents have demonstrated substantial prejudice as a result of the delay.

20For these reasons, the Application is dismissed.