Jeffrey Lutz v. Corporation of the City of Toronto, 2009 HRTO 1714

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Lutz

Applicant

-and-

Corporation of the City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: October 21, 2009

Citation: 2009 HRTO 1714

Indexed as: Lutz v. Toronto (City)

Introduction

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 May 11, 2009, alleging that the respondent discriminated against and harassed him in respect of employment on the grounds of disability, ancestry, and reprisal. Among other things, the applicant alleges that, following his return to work from disability leave in September 2006, the respondent employer harassed him by requiring him to bring a sick note each time he was absent from work due to illness, even for one day. The applicant submits that he has been off work because of disability since March 2007. However, the respondents submit that the applicant returned to work in late September 2009. The Application indicates that the date of the last event upon which the Application is based was February 6, 2007, approximately two years and three months before the Application was filed.

Background and Positions of the Parties

2Section 34 of the Code provides that an applicant may apply to the Tribunal within one year of the last event (or the last in a series of events) upon which the application is based. After one year, an applicant may only apply to the Tribunal if the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice would result to anyone affected by the delay if the application were to proceed.

3On June 19, 2009, the Tribunal sent the applicant a Notice of Intent to Dismiss advising that the Application appeared to be outside of the Tribunal’s jurisdiction because of the delay in filing the Application. The Tribunal directed the applicant to provide his submissions explaining why he ought to be able to proceed with the Application in light of the apparent delay in filing it.

4In his July 16, 2009 response to the Notice, the applicant submits that the delay prior to approximately early to mid-2008 was incurred in good faith because, prior to that time, he believed that his trade union was pursuing his human rights in respect of the issues raised in the Application through the grievance procedure. The applicant submits that he filed a grievance through his trade union on March 23, 2007 which alleged, among other things, that the respondent employer was harassing him on the basis of an ongoing illness by constantly requiring him to provide doctors’ notes to substantiate absences of one or two days’ duration. He submits that he discovered in early to mid-2008 that his trade union was not in fact pursuing his human rights and was not willing to help him with respect to the harassment issue until the applicant returned to work.

5The applicant also submits that his disability contributed to the delay in filing the Application, and that delay incurred because of his disability was incurred “in good faith” within the meaning of the Code. The applicant submits that he has seizures which are exacerbated by stress and that he has to avoid stress as a result. He submits that completing the Application was stressful for him and that, to minimize that stress, he could only work on his Application for a period of time before having to put it aside. The applicant was off work due to disability for the entire period of the delay.

6In an Interim Decision in this matter, 2009 HRTO 1137 (Can LII), I found that the circumstances raised by the applicant might be sufficient to satisfy the Tribunal that the delay in filing the Application had been incurred in good faith. However, before determining that issue, I directed that the respondent be given an opportunity to make submissions on whether the applicant ought to be permitted to proceed with the application under section 34(2) of the Code. I also directed the applicant to submit any medical evidence he might have substantiating that his disability contributed to the delay in filing the Application.

7In response to the Interim Decision, the respondent submits that the delay in filing the Application was not incurred in good faith and that the delay in filing the Application cannot be attributed to the applicant’s disability. Among other things, the respondent submits that, during the period in question, the applicant’s disability did not prevent him from pursuing other statutory and contractual rights. The respondent also submits that it would suffer substantial prejudice as a result of the delay if the Application were to proceed.

8In support of his submission that his disability contributed to the delay in filing the Application, the applicant submitted a brief, handwritten doctor’s note dated August 5, 2009, which indicates that the applicant has multiple medical issues and that he has difficulty focusing due to poor concentration and sleep. On the August 6, 2009 fax cover sheet to the Tribunal which accompanied the doctor’s note, the applicant stated, “If you require more detailed information, please advise and I can ask him to complete this for you.”

Deferral of the Application

9In its submissions on the delay issue, the respondent submits that the facts and issues raised in the Application are part of a grievance which is still outstanding. The applicant, in his Application and in his submissions to the Tribunal, acknowledges that his March 2007 grievance relates to the same facts and issues as the Application. However, he states that his trade union advised him that it would not deal with his grievance until he returned to work.

10On September 25, 2009, the respondent wrote to the Tribunal to advise that the applicant returned to work with the respondent in September 2009.

11This raises a question whether the applicant’s trade union will be dealing with the applicant’s March 2007 grievance and, if so, whether this Application ought to be deferred pending completion of the grievance and arbitration process.

12The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

Decision

13Having carefully considered the submissions of the parties, I find that the most fair, just and expeditious manner in which to proceed is for the Tribunal to convene an oral hearing at which the parties should be prepared to present evidence and make submissions on the issue of timeliness under sections 34(1) and (2) of the Code and on the issue of whether the Tribunal ought to defer the Application pending the completion of the grievance and arbitration process in respect of the applicant’s March 2007 grievance.

14The parties should come to the hearing prepared to address the circumstances surrounding the delay in filing the Application and to address the extent to which the applicant’s disability contributed to the delay in filing the Application. In addition, the parties should come to the hearing prepared to speak to whether there is an ongoing requirement for the applicant to produce a doctor’s note for every absence from work, and, if so, whether this affects the determination as to whether there has been delay in bringing the Application. Finally, the parties should be prepared to speak to the current status of the applicant’s March 2007 grievance and to make submissions on whether the Application ought to be deferred pending completion of the grievance and arbitration procedure.

15At this time, the Tribunal also wishes to address the applicant’s August 6, 2009 correspondence in which the applicant suggests that additional medical information in support of his position on the delay issue may be available, and asks that the Tribunal notify him if such information is required.

16The Tribunal is a neutral adjudicative body. Its role is to determine applications under the Code based on the evidence presented by the parties. It is not the Tribunal’s role to evaluate one party’s evidence and advise of shortcomings in what has been presented, in order to afford that party an opportunity to repair deficiencies in his, her or its case.

17It is for applicant to decide what evidence he wishes to put before the Tribunal. The Tribunal will determine the issue based on the evidence presented by the parties. If the applicant does not present evidence sufficient to satisfy the Tribunal that the delay in filing his Application was incurred in “good faith”, the Application will be dismissed in accordance with section 34(2) of the Code. As the Tribunal recently stated at para. 25 in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (Can LII):

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, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

18The Tribunal will convene a half-day oral hearing for the purpose of determining the above-noted issues. The parties shall deliver to each other and file with the Tribunal any documents upon which they intend to rely at the hearing of this issue as soon as possible and by no later than 21 days before the hearing. The parties need not exchange any documents which they have already provided to one another.

19If the applicant intends to call a doctor as a witness at this proceeding, he should indicate to the Tribunal and the respondent whether he wishes to have such witness testify in person or by telephone. The Tribunal will address issues which may arise with respect to such testimony, if any, at the appropriate time.