Deane v. Condor Signal & Communications, 2009 HRTO 1701

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Deane

Applicant

-and-

Condor Signal & Communications Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 16, 2009

Citation: 2009 HRTO 1701

Indexed as: Deane v. Condor Signal & Communications

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on July 9, 2009. The applicant alleges that the respondent discriminated against him in employment on the ground of disability.

2The material before the Tribunal raises issues about whether the Tribunal has jurisdiction over this Application. The purpose of this Interim Decision is to explain those issues and request that the parties make submissions on them.

FACTUAL BACKGROUND

3The Application contains very little information and is missing crucial details. Indeed, the facts contained in this background section concerning the applicant’s employment relationship with the respondent are all from the Response.

4The applicant was hired as a driver/labourer on May 30, 2008 and commenced work on June 2, 2008. The respondent operates in Ontario, but the applicant seems to have been hired to work on a crew in Calgary, Alberta. It would appear that the arrangement was that he was to fly to Calgary, work for a concentrated period each month, before being flown back to Ontario for two weeks.

5The applicant was flown to Calgary and apparently commenced work there on June 3, 2008. According to the respondent, he worked there without incident until June 13, 2008. There were no trucking duties that day so the applicant was assigned labourer duties instead. The respondent states that the applicant failed to do any of the tasks assigned to him.

6His roommate reported that the applicant was not in the room when he woke up the next morning, but that the applicant had left behind the key to the truck he was driving and a copy of a “physician’s report of injury,” dated June 13, 2008, specifying that the applicant should be placed on light duties. The applicant did not report to work on June 14, 2008, did not speak to his supervisor about any alleged injury and did not request light duties. Although he continued to reside in the hotel room provided to him by the respondent, he was either absent from his room or sleeping whenever his roommate returned to it.

7In the early morning hours of June 17, 2008, the applicant was woken up by his roommate and rode to the airport with other members of his crew, but did not speak to anyone. No one saw him board the plane for Ontario, or saw him disembark from it. The respondent takes the position that the applicant abandoned his employment with it.

JURISDICTION

8As discussed, the applicant does not describe any of the above in his Application. When asked to detail what happened, the applicant simply states the following:

1. Paid by cheque instead of direct deposit
2. Cheque received on July 15/08
3. Constructive dismissal

9At no point in his Application does the applicant allege that this “constructive dismissal” took place because he had sustained a workplace injury or filed a claim with the Workplace Safety and Insurance Board (“WSIB”), although he does state that he sustained an unspecified workplace injury when asked to describe his disability. He states elsewhere that he was unable to work from June 14, 2008 to July 1, 2008 as a result of this injury.

10In his Reply, the applicant does not deny any of the facts related to his work with the respondent set out in the Response. Namely, he does not deny that he failed to report his injury to work, failed to ask for light duties; indeed, that he failed to even speak with a supervisor or attend work after June 13, 2008.

11It is insufficient for the purpose of establishing an application under the Code that an applicant simply state that he or she has a disability protected by the Code and that his or her employment has been terminated. There must be a link alleged between the disability and the termination of employment. In this case, the applicant has failed to make any such link.

DELAY

12It is unclear when the applicant’s “termination” from employment with the respondent took place. The respondent appears to be stating that the applicant’s employment with the company ceased on June 14, 2009, when he abandoned his position.

13The applicant appears to be stating that he ascertained that he had been “constructively dismissed” when he received a cheque for his pay, rather than having it automatically deposited to his account, on July 15, 2008. He does not specify what, if any, contact he had with the company in the intervening period between when he returned to Ontario on June 17, 2008 and July 15, 2008 to make him think that an employment relationship continued to exist.

14Neither the applicant nor the respondent provided the Tribunal with a copy of the applicant’s Record of Employment or specified what that document stated was the reason for his departure or the date his employment with the company was formally severed.

15The significance of this date (i.e., the date the applicant’ employment with the respondent ended) concerns whether his application was filed within the one-year time limit specified by the Code. Section 34 states, in part:

(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 incident, 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.

16Pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal has no jurisdiction to deal with the Application unless it is satisfied that the delay in filing the Application was incurred in good faith and no substantial prejudice will result.

17As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” It is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

SUBMISSIONS

18The parties are directed to make submissions to the Tribunal on the issues of jurisdiction and delay by October 30, 2009. Specifically, the parties are directed to provide answers to the following questions:

a. Does the applicant allege that he advised the respondent of his alleged work-related injury and, if so, when and how?

b. Does the applicant allege that the respondent was otherwise aware that the applicant was claiming that he had a work-related injury at the time of the termination of his employment?

c. Does the applicant allege there was an employment relationship between him and the respondent after his return to Ontario on June 17, 2008?

d. What date do the parties allege the applicant’s employment with the company ended, formally or otherwise?

e. Do the parties assert that the Application was filed within one year of the last alleged incident of discrimination?

f. If not, was the delay incurred in good faith? Will the delay result in any prejudice to the respondent?

19I am not seized of this matter.