Persad v. Toronto Transit Commission, 2009 HRTO 325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kris Persad

Applicant

-and-

Toronto Transit Commission, Orest Romaniuk and Jim Bebell

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: David Muir

Date: March 19, 2009

Citation: 2009 HRTO 325

Indexed as: Persad v. Toronto Transit Commission ____________________________________________________________________________

1This is an Application filed August 26, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent employer and personal respondents Dixon and Bebell filed their Response on October 3, 2008.

2The respondents have requested an early dismissal of the Application on the basis that it is untimely and alternatively that the Ontario Labour Relations Board has made findings of fact that would be binding on the Tribunal. They requested that the personal respondent Dixon be removed as a respondent because the facts alleged against him do not amount to a breach of the Code.

3The applicant consented to the removal of Mr. Dixon as a personal respondent.

4A Case Resolution Conference was held on March 12, 2009 to hear oral submissions on the respondents’ requests.

REQUEST TO DISMISS THE APPLICATION

5Section 34 of the Code allows the Tribunal to consider applications alleging infringements of the Code brought within one year after the alleged breach. This was one of the amendments to the Code that went into force on June 30, 2008, and extended the limitation period from six months under the old Code. The section also preserves the Tribunal’s discretion to accept late applications in certain circumstances:

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.

6Under s. 34, the Tribunal may deal with an application filed more than a year after the incident, or the last incident in a series, if it is satisfied that the circumstances in s. 34(2) exist, that is, that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

7Neither party took issue with the application of section 34 as it now is to this Application. In the absence of submissions on the point this decision I have assumed without deciding that the current language of section 34 does apply here, in particular that the complaint to the Commission must have been filed within a year of the incident or series of incidents complained of.

8In this human rights complaint filed on January 2, 2008 the applicant, who self identifies as West Indian of East-Indian origin, alleges that from late 2000 to February 22, 2001 he was subject to racial discrimination, humiliation and harassment by Jim Bebeel, identified as Afternoon Foreperson.

9The applicant began his employment with the Toronto Transit Commission in 1987. His last day of work was February 21, 2001. He called in sick on February 22 and then went off on sick leave for several weeks.

10On or about April 17, 2001 the applicant’s sister contacted the TTC and stated that the applicant had left the country to attend to a family medical emergency in Trinidad. On April 30 the applicant’s sister contacted the TTC to state that he would not be returning to Canada on April 30 as previously planned. The applicant’s sister also is alleged to have requested on his behalf, an 8 month leave of absence to attend to a sick relative. The request for a leave was denied by letter dated May 9, but the applicant was told he could use vacation and lieu time to extend his leave to June 14, 2001. He was expected to return to work on that date.

11On June 4 the applicant is alleged to have contacted a supervisor, Mr. Edwards, claiming to be in Trinidad and unable to return to work on June 14th. There is a dispute about the reasons given for not being able to return. The applicant alleges that he was hospitalized for substantially all of his time in Trinidad. The respondent employer is suspicious of that claim. In light of my conclusions below it is not necessary for me to resolve this issue.

12The applicant did not return to work on June 14 and his employment was terminated on June 19, 2001. He did not request that his union file a grievance until October 2001, well beyond the time limits in the collective agreement, claiming he did not know he had been terminated until he returned to Canada in October 2001. In any event the employer denied the grievance on the basis that it was out of time.

13The applicant was asked by his union to provide information to explain his lengthy absence from work. Instead of doing so he gave the impression that he was going to file a human rights complaint. The union did not take the grievance to arbitration.

14By November 2005 the applicant states that his medical condition had improved and he was able to return to work. In January 2006 he attempted to revive his grievance. The union denied the request on January 16, 2006. The applicant sent a second letter to the union on January 18 asking it to reconsider its decision. The union responded on August 18, 2006 asking for information to explain the lengthy absence from work in 2001. The union ultimately decided in November 2006 to not to take the grievance forward.

15The applicant filed a duty of fair representation complaint at the Ontario Labour Relations Board (OLRB) in January 2007. The OLRB released several decisions in the case and ultimately dismissed the complaint based in large part on the lengthy delay and the applicant’s inability to explain it.

16The human rights complaint was filed with Ontario Human Rights Commission on January 2, 2008. As indicated it alleges discrimination by the respondents in incidents that occurred in late 2000 and 2001.

17The applicant states that the delay was not incurred in bad faith and it is without prejudice to the respondents. He explains that his failed attempts to navigate the legal system are a result of his mental disability and his lack of legal representation. For the period from December 2001 to November 2005 he claims the symptoms of his mental illness rendered him incapable of commencing and pursuing legal remedies. In his view it would be contrary to law to apply limitation periods during the period of time in which he was unable to commence legal proceedings due to his mental disability. The time limit in the Code only applies to delays occurring while he had the mental capacity to protect his legal rights.

18While acknowledging the TTC denied his grievance because it was untimely, the applicant claims the TTC was aware that he was a person with a mental disability and had a duty to accommodate him within the grievance process. At this stage the TTC should have allowed the grievance based on the fact he had been hospitalized in Trinidad. The denial of his grievance exacerbated his symptoms and he entered a long period of incapacity.

19For the period after November 2005, the applicant states that because he had no legal representation and was still suffering from symptoms of his mental illness he did not understand the kind of evidence he needed to provide that would persuade his union to take his grievance forward. It was also suggested that the Ontario Human Rights Commission would not have accepted a complaint until he had exhausted all of his remedies. As such, the time limit in the Code should not apply until the completion of the OLRB process in October 2007.

20The respondents state that the record suggests that the applicant was capable of initiating a human rights complaint and point to his filing of a grievance, his successful application for ODSP, and his Canada Life application. The respondents also take issue with many of the alleged facts. The respondents deny that the applicant or his sister advised Mr. Romaniuk at any time that he could not return because he was in hospital in Trinidad or receiving medical treatment.

21I am not satisfied based on the material filed that the extensive delay in this case was incurred in good faith and that there is no substantial prejudice to the respondents in the circumstances.

22The delay here is more than seven years after the alleged incidents. It does not matter whether or not the applicant was hospitalized in Trinidad for the period April to October 2001; there is no dispute that he was in Canada pursuing his remedies in October 2001. The medical evidence to support his disability is very limited. Although diagnosed with schizoid-affective disorder, this diagnosis appears to pre-date all of these events by many years. That seems to suggest that, although being a person with this condition, the applicant has been capable of functioning at a high level.

23Although there is evidence to support the assertion that the applicant was unable to work between October 2001 and November 2005, there is no medical evidence to support the contention that he was incapable of filing a human rights complaint during that time. In any event the applicant claims that he was able to return to work in late 2005, yet he did not file the complaint until January 2008. The pursuit of remedies against his union at the OLRB in these circumstances does not provide a reasonable response to the failure to file his human rights complaint against his employer in a more timely manner.

ORDER

24For all of these reasons, I order that:

a. The Application is dismissed.

b. The respondent David Dixon is removed from the Application and the style of cause amended accordingly