Falls v. Sault Area Hospitals, 2010 HRTO 112

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Falls

Applicant

-and-

Sault Area Hospitals, Sault College of Applied Arts and Technology, Canadian Auto Workers Union Local 220, Rose Oliver, Terry Scott, Mindy Lindsteadt, Sandra Mossa, Catherine Larmont, Jane Sippell, Charlene McDonald, Shawn Brown, Mike Smith, Luke Elgren, Mark Prentiss, Cheri Mohammed, Sandra Irwin and Kim Purvis

Respondents

DECISION

Adjudicator: Eric Whist

Date: January 18, 2010

Citation: 2010 HRTO 112

Indexed as: Falls v. Sault Area Hospitals

1The applicant alleges that she was discriminated against in employment, contracts and membership in a vocational association on the grounds of disability, sex, sexual solicitation or advances, sexual orientation, family status, marital status, age, receipt of public assistance, record of offences, association with a person identified by a ground under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and on the basis of reprisal or threat of reprisal contrary to the Code. The applicant filed her Application with the Tribunal on July 8, 2009.

2On November 5, 2009 the Tribunal sent a Notice of Intent to Dismiss (the “Notice”) to the applicant stating that it appeared that the Tribunal may not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the applicant had not explained why the delay in filing was incurred in good faith and why the delay would not cause substantial prejudice to any person affected by the delay. The Notice further stated that the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by eight of the named individual respondents and the Canadian Autoworkers Union Local 220 (the “CAW”).

3The Notice directed the applicant to provide submissions within 30 days on why the Application is within the Tribunal’s jurisdiction given the delay in filing and directed the applicant to specify what event occurred on May 4, 2008, which the Application identifies as the date of the last event of discrimination. The Notice further directed the applicant to provide submissions explaining why certain of the individual respondents and the CAW allegedly breached the Code.

4The applicant has not provided submissions in response to the Notice and the time permitted for responding has elapsed.

Background

5It is difficult to ascertain a clear chronology of events from the Application and materials provided by the applicant. The applicant was a long term Registered Practical Nurse (“RPN”) nurse with the Sault Area Hospitals. It appears from the Application that the applicant’s employment was terminated in February 2007 but that she was subsequently reinstated in August 2007. It appears she was required to successfully complete a course in medications administration at the Sault College of Arts and Technology as a condition of continuing her employment but did not complete a needed practicum. It is not clear from the Application when the applicant last worked but it appears to be before May 2008 when the Application indicates that the applicant’s union, the CAW, refused to accept her grievance about the Sault Area Hospitals’ actions. The Application clearly identifies May 4, 2008 as the date of the last event of alleged discrimination.

6In addition to naming the three institutional respondents (the Sault Area Hospitals, the Sault College of Arts and Technology and the CAW) the applicant names 14 individual respondents. Many of these are Sault Area Hospitals’ staff who are identified as having harassed the applicant on various grounds.

7The Application indicates that the applicant filed a complaint with the Ontario Labour Relations Board (OLRB) in January, 2009 under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, (the “LRA”) as amended, on the grounds that the CAW had failed in its duty to provide the applicant with fair representation.

Decision

8Section 34(1) 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) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

9I find that the incidents to which the Application relates end in May 2008 and accordingly the Application, filed over one year later in July 2009, does not meet the requirements of section 34(1).

10The issue I must therefore consider is whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice to the respondents.

11As stated in Miller v Prudential Real Estate, 2009 HRTO 1241 in order for an applicant to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

12In 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: see, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

13The applicant does provide a narrative in her Application in response to Question 7(d) which asks “If you are applying more than one year from the last event please explain why”. The applicant refers to feeling threatened by the hospitals, of trying to contact persons with no results, of becoming discouraged, frustrated and depressed. The applicant goes on to describe the difficulties in her life including her financial hardships and the effects that losing her job has had on her social life and on her health.

14The applicant makes several general comments about the difficulties in her life. Even accepting she has had difficulties, I do not find that these very general subjective statements are sufficient to establish that she was unable to act with due diligence and file her Application in a timely fashion. I note that within the one year time frame she had to file an Application she was prepared and able to pursue her rights under the LRA by filing a complaint with the Ontario Labour Relations Board.

15The applicant was made aware that the Tribunal had concerns about her delay in filing her Application when it issued its Notice. The applicant provided no submissions in response to this expressed concern. I find, based on the information before the Tribunal, that the applicant has not demonstrated that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code.

16The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579). Consequently, the Application is dismissed.