Imrie-Howlett v. Peel District School Board, 2009 HRTO 182

Human Rights Tribunal of Ontario

B E T W E E N:

Ann Imrie-Howlett Applicant

-and-

Peel District School Board and Elementary Teachers’ Federation of Ontario Respondents

INTERIM DECISION

Adjudicator: Alan Whyte Date: February 19, 2009 Citation: 2009 HRTO 182 Indexed as: Imrie-Howlett v. Peel District School Board

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 November 18, 2008 alleging discrimination in employment on the ground of disability. The respondent Peel District School Board (the “Board”) is the former employer of the applicant. The respondent Elementary Teachers’ Federation of Ontario (the “Union”) was at all material times the bargaining agent for the applicant.

2The applicant worked for 24 years as a teacher for the Board and retired on April 30, 2002. In the fall of 1997, she was diagnosed with clinical depression, as a result of which she was absent for extended periods of time. Ultimately, she returned on a part-time basis (working three days per week) and was paid from her sick leave bank the other two days per week. As a consequence, she used up her entire sick leave bank by the time of her retirement.

3In 1998, the retirement allowance provisions of the collective agreement between the Board and the Union were changed from a calculation that was previously based entirely on the service of the employee, to a calculation which factored in the number of sick leave days outstanding at the time of the teacher’s retirement. As a result of these changes, the applicant had no entitlement to a retirement allowance as of the date of her retirement. The applicant alleges that the changes made to the collective agreement were discriminatory in relation to her and approximately 20 to 30 other teachers who were nearing retirement and were disabled prior to the effective date of the changes in September 1998.

4The applicant indicates in her Application that she complained about the effect of these changes on her, both at the time of the changes being made and subsequently. She references two letters from the Board dated December 4, 2000 and December 17, 2001 which denied her request for special consideration in relation to the calculation of the retirement allowance. She also indicates that at the time of her retirement in April 2002, she raised the matter again with the Union, and was told, as she had been before, that the retirement allowance was a matter that had been negotiated in collective bargaining between the Board and the Union and that the Union was not able to assist her.

5In section 7(d) of the Application, which requires the applicant to explain the reasons for her applying more than one year from the last event (which is listed as April 30, 2002), she sets out five items in support of her position. Those items include her ignorance of the six-month limitation period for filing a complaint under the old Code, her belief in what the Board and the Union had been telling her (that there was nothing that could be done about her situation) and that she was under treatment for depression as a result of the upsetting circumstances surrounding her retirement. She indicates that in the summer of 2007, she decided to proceed legally and received clearance from her psychiatrist to do so. There is no medical explanation or evidence provided by the applicant for her failure to proceed legally from 2002 to the date of this Application in late 2008.

6Both the Board and the Union raised the timeliness/delay issue as a preliminary issue in their Responses. Both respondents argue that the delay in the applicant's initiation of this Application was not incurred in “good faith” as required under section 34 (2) of the Code. Both respondents attack the applicant's good faith position and suggest that there is no proper basis upon which the Tribunal should extend the one year period referenced in section 34 (1) of the Code. The Union argues in addition that it has been “substantially prejudiced” as mentioned in section 34 (2) of the Code.

7In the circumstances, the Tribunal believes that the most fair, just and expeditious way of determining the preliminary issue at this stage is by way of written submissions. The Tribunal therefore orders the following:

(a) Written submissions shall be delivered by the applicant to the respondents and filed with the Tribunal by March 27, 2009 with respect to the timeliness/delay issue. If the applicant intends to provide medical evidence in support of her submissions, she shall attach to her submissions a medical report from an appropriate medical practitioner;

(b) Within the same timeframe, the applicant shall also deliver to the respondents and file with the Tribunal any documents and case law on which she relies;

(c) The respondents shall deliver to the other parties and file with the Tribunal their submissions in reply, by April 13, 2009; and

(d) Within the same timeframe, the respondents shall also deliver to the applicant and file with the Tribunal any documents and case law on which they rely.

8On receipt of the parties’ submissions, the Tribunal will either render a decision or determine the appropriate manner of proceeding.

9I am not seized of this matter.