Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Cartier Applicant

-and-

Northeast Mental Health Centre – North Bay Campus, Ontario Public Service Employees Union, Local 636, Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care, Karen Bennett, Marlene Thacker, Don Coutts, Selinah Sogbein, Johanna Fontaine, Mary Anne Lamothe, Ehren Baldauf, Alison Robinson, Jennifer Lyle, Mary Mars, Diane Windsor, Anne Sinclair, Darlene Dubonnet Beauchy, Lorraine Roy, Sonja Brown, Karen Robinson, Lou-Ann Joubenvill, Debbie Orton, Caroline Betty, Jocelyn Rose, Angela Leblanc, Nicole Beaulieu, Kim Jones, Fred Skinner, Jody Jesse, Maureen Leclaire, Sandy Larochelle, Penelope Roberts, Kim Point, Kirk Hewitt, Shirley Bell, Karen Sherry, Marilyn Nairn, Tony Morabito, Marion Mellville, Graig Nesbitt, Jackie Smythe and Jackie Crawford Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: October 14, 2009 Citation: 2009 HRTO 1670 Indexed as: Cartier v. Northeast Mental Health Centre

BACKGROUND

1The applicant filed an Application on February 5, 2009, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against her in respect of employment on the basis of sex, record of offences, association with a person identified by sex and/or record of offences, and also engaged in reprisals contrary to the Code.

2On reviewing the Application, it appeared to the Tribunal that the Application may have been filed outside the time permitted in the Code. Specifically, the Application indicates that the date of the last event upon which the Application was based was more than a year before the Application was filed, January 24, 2008, the date of the applicant’s termination from employment.

3By way of an Interim Decision in this matter, 2009 HRTO 691, the Tribunal advised the applicant that it appeared that, pursuant to section 34 of the Code, she might not be able to apply to the Tribunal because of delay in filing the Application. 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 (or the last incident in a series of incidents) 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.

4The Tribunal directed the applicant to provide her submissions explaining why she believes that the delay in filing the Application was incurred in good faith. The Interim Decision informed the applicant that if she did not make submissions as directed, or if her written submissions did not satisfy the Tribunal that the delay in filing the Application was incurred in good faith, the Application might be dismissed.

5In addition, there is an issue whether the Tribunal has jurisdiction over the subject-matter of the Application. Specifically, it was not clear on the face of the Application whether the respondents’ impugned actions were alleged to have been based on the prohibited grounds under the Code identified by the Applicant. The above-noted Interim Decision also sought submissions from the applicant on that issue.

6The applicant has filed submissions with the Tribunal in which she withdraws the allegations that she was discriminated against on the basis of record of offences and association with a person identified by sex and/or record of offences.

7The applicant maintains that the respondents discriminated against her on the basis of sex and engaged in reprisals contrary to the Code. She alleges that Northeast Mental Health Centre – North Bay Campus’ (“NEMHC”) practice of not permitting her to work on an all-male ward on the night shift during the period from December 5, 2005, to December 22, 2007, because she was a female nurse was discriminatory on the basis of sex. She also alleges that on January 19, 2008, she was reassigned from the all-male ward to another ward because she was female and that this constituted discrimination on the basis of sex, contrary to the Code.

8The applicant further alleges that the respondent employer, NEMHC, engaged in a reprisal when it terminated her employment on January 24, 2008, because it knew the applicant intended to file grievances alleging discrimination on the basis of sex contrary to the Code.

9In her submissions, the applicant asks that she be permitted to add disability as an additional ground of discrimination. The applicant alleges that the respondent NEMHC and Marilyn Nairn, the arbitrator in her discharge grievance (“the arbitrator”), discriminated against her on the basis of disability by not accepting a doctor’s note as valid proof of illness on January 19, 2008. According to the arbitration award submitted by the applicant with her Application, the arbitrator found, as a matter of fact, that the applicant was not sick on the date in question but claimed to be, in order to avoid a work assignment that she did not like.

10The applicant’s submissions raised additional jurisdictional issues. Accordingly, a further Interim Decision, 2009 HRTO 1118, sought submissions from the applicant regarding whether the Tribunal had jurisdiction over the allegations against the arbitrator regarding her actions as an adjudicator under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended (“LRA”), and also whether the applicant had a “disability” within the meaning of the Code. In addition, the Tribunal sought submissions from the applicant regarding whether all of the named respondents ought to continue to be parties to this proceeding.

11The applicant filed her submissions in response to the second Interim Decision. In them, the applicant, who identifies herself as a French Canadian white woman, asks that she be permitted to further amend her Application to include allegations that she experienced discrimination on the basis of race and colour.

Delay in Filing the Application

12The applicant submits that the delay in filing her Application was incurred in good faith. In explaining why her Application was filed more than one year after the date of the last event, the applicant states that she was awaiting a decision on a section 74 Duty of Fair Representation Complaint (the “section 74 Complaint”) she filed with the Ontario Labour Relations Board (“the OLRB”) in May 2007 regarding the withdrawal of certain grievances by her trade union in February or March 2007. She states that she was waiting to see if the OLRB would direct that her grievances be sent to arbitration. The section 74 Complaint was heard at the OLRB in March 2008. The applicant submits that she received the Board’s May 6, 2008 decision dismissing her Complaint in May 2008.

13As a further explanation for the delay in filing her Application, the applicant submits that she had to go through the arbitration process to try to regain her employment before she could make her Application to the Tribunal. The arbitration hearing in respect of the applicant’s grievance was held on June 9, July 24, July 25, and September 10, 2008, before Arbitrator Marilyn Nairn.

14The applicant’s employment was terminated by the respondent, NEMHC, on January 24, 2008. The applicant’s trade union, Ontario Public Service Employees’ Union, Local 636 (“OPSEU”), one of the respondents in this matter, filed a grievance on the applicant’s behalf alleging that she had been unjustly discharged by NEMHC. The grievance was referred to arbitration.

15According to the applicant, during the events leading up to her termination, she told representatives of the NEMHC and OPSEU, as well as at least two of the personal respondents in this matter, Mary Mars and Karen Bennett, that she was going to pursue allegations that she had been subjected to discrimination on the basis of sex, contrary to the Code, through the grievance procedure. However, the applicant submits that, at the arbitration hearing, her trade union refused to address or raise any arguments on the applicant’s behalf relating to discrimination based on sex or disability under the Code.

16By decision dated October 27, 2008, the arbitrator dismissed the applicant’s grievance and upheld her discharge on the basis of the applicant’s insubordination on January 19 and 20, 2008. The applicant submits that she received the decision in early November 2008.

17The applicant submits that after she received the arbitrator’s decision, it took her some time to “figure out her next move”, gather her information and submit her Application to the Tribunal on February 5, 2009. She says that she was distraught and under a lot of stress when she learned that she was not successful in her arbitration. She says that she is “truly sorry” for the delay and asks that the Tribunal find that the approximately two week delay in filing her Application was incurred in good faith.

18Section 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) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay:

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.

19In this case, the Application is based on events dating back to 2004. According to the Application, the date of the last event upon which the Application is based was January 24, 2008, the date of the applicant’s termination from employment. The Application was not filed until more than one year after the date of the last event, on February 5, 2009.

20Although the delay from the date of the last event was a relatively short one of 12 days, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith. This is because the Tribunal’s power to hear and determine human rights applications is based on the Code. The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to “condone” delay, as requested by the applicant in this case, where it is not satisfied that it was incurred in good faith.

21In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. In Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8, I relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3d) 419 (Ont. U.F.C.), cited in Scherer v. Scherer, (2002) 2002 CanLII 44920 (ON CA), 59 O.R. (3d) 393 (O.C.A.). Delay has been found not to have been 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 (ON S.C.). The courts have held 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 enquiries about those rights.” (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).

22In this case, the applicant submits that she could not file a human rights Application until she had first exhausted her attempts to obtain redress through a section 74 complaint to the OLRB and the arbitration hearing held in respect of her discharge grievance. She submits that she received the OLRB’s decision dismissing her complaint against her trade union, OPSEU, in May 2008 and the arbitration decision dismissing her grievance and upholding her discharge in early November 2008. She submits that it then took her until February 5, 2009, to “figure out her next move” and to file her Application with the Tribunal.

23Having carefully considered this matter, I am not satisfied that the delay incurred in filing the Application in this case was incurred in good faith. The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

24This is particularly so in the circumstances of this case. The applicant states that her trade union refused to argue at arbitration that the respondent employer, NEMHC, discriminated against the applicant on the basis of sex or disability contrary to the Code. Accordingly, the applicant ought to have known by the first day of the arbitration hearing, June 9, 2008, if not before, that her human rights issues would not be addressed in the arbitration hearing and that, if she wished to pursue those issues, she would have to pursue them elsewhere. Certainly, by the last day of the arbitration hearing, September 10, 2008, there could have been no doubt in the applicant’s mind that her human rights issues were not going to be determined at arbitration. The applicant knew that her human rights issues had not been raised at arbitration; she therefore need not have waited for the arbitrator’s award before pursuing her rights under the Code or determining what she would do next. The applicant’s assertion that she had to wait for the arbitration award before she could “figure out her next move” is an inadequate explanation for her failure to file a timely Application under the Code. It may be that the applicant decided to wait for the arbitration decision because she felt that success at arbitration, likely resulting in her reinstatement to employment, would make filing an Application under the Code unnecessary. Although I have some sympathy for that approach, I nonetheless am not satisfied that the delay incurred because the applicant was waiting for the outcome of one legal proceeding before ascertaining what other avenues might be available to pursue her human rights was incurred in “good faith” within the meaning of the Code.

25In essence, the applicant submits that the delay in filing her Application was due to the fact that she did not take steps to ascertain her rights until after she received the arbitration award in November 2008. Although ignorance of one’s rights may, in some circumstances, amount to good faith, the applicant must also establish that she had no reason to make enquiries about her rights. In these circumstances, and for the reasons set out above, the applicant has not satisfied me that she had no reason to make enquiries about her rights until she received the arbitration award in November 2008.

26Even if it was reasonable for the applicant to wait until she received the OLRB’s decision in her section 74 complaint and the arbitrator’s award in her discharge grievance (which, I have found, it was not), it was still possible for the applicant to have filed a timely Application under the Code. The applicant received the OLRB’s decision in May 2008, more than eight (8) months before she filed her Application with the Tribunal. She received the arbitrator’s award dismissing her grievance in early November 2008, approximately three (3) months before she filed her Application with the Tribunal. Even if it were reasonable for the applicant to wait for the arbitrator’s award before pursuing her rights under the Code, the applicant had approximately two and a half months after she received the arbitrator’s award during which she could have filed a timely Application. She did not do so.

27In these circumstances, I am not satisfied that the delay in filing the Application was incurred in good faith. As such, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed. In light of the Tribunal’s finding that the delay was not incurred in good faith, the Tribunal has no power pursuant to section 34(1) of the Code to hear this Application.

28The Application against all of the respondents except Marilyn Nairn is therefore dismissed.

Tribunal’s Jurisdiction over Adjudicative Decision-Makers

29The Application as against the arbitrator in the applicant’s discharge grievance (“the arbitrator”) was not untimely. Although the Application identified January 24, 2008, as the date of the last event upon which the Application is based, the allegations against the arbitrator are clearly based upon findings made in her October 27, 2008 arbitration award, dismissing the applicant’s grievance and upholding the NEMHC’s decision to terminate her employment.

30In a previous Interim Decision, the Tribunal requested, and the applicant provided, submissions on whether the Tribunal has jurisdiction over the Application against Ms Nairn, based on the exercise of her adjudicative function as a labour arbitrator appointed under the LRA. Because the Tribunal did not expressly raise it in its Interim Decision, the Tribunal wishes to give the applicant a specific opportunity to make submissions on the issue whether the Tribunal lacks jurisdiction over the allegations against Ms Nairn based on the doctrine of judicial immunity.

31The doctrine of judicial immunity prohibits legal proceedings against courts and tribunals which are based on their actions as adjudicators. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that adjudicators are free to execute their decision-making duties with independence and without fear of consequences. The principle of judicial immunity has been applied to protect judicial actors from human rights complaints (Taylor v. Canada (Attorney General) (2000), 2000 CanLII 17120 (FCA), 184 D.L.R. (4th) 706 (leave to appeal to the Supreme Court of Canada refused [2000] No. 213); Gonzalez v. Ministry of Attorney General, 2009 BCSC 639; and has been extended to tribunals and other statutory-decision makers (Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.). Moreover, labour arbitrators have been found to be statutory tribunals: International Nickel Company of Canada Limited and Rivando, (1956), 1956 CanLII 122 (ON CA), 2 D.L.R. (2d) 700 (ON.C.A.), followed in Port Arthur Shipbuilding Company v. Arthurs, 1968 CanLII 29 (SCC), [1969] S.C.R. 85 and Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 114 D.L.R. (3d) 162 (ON.C.A.).

32If the applicant wishes to make submissions on whether Ms Nairn is protected from this Application because of the doctrine of judicial immunity, she may file her submissions with the Tribunal within seven (7) days of the date of this Interim Decision. The respondent, Ms Nairn, is not required to file a response to the applicant’s submissions unless and until directed to do so by the Tribunal.