Brooks v. North York General Hospital, 2010 HRTO 1219

Human Rights Tribunal of Ontario

B E T W E E N:

Veloris Brooks

Applicant

-and-

North York General Hospital, Esther Koven, Kevin Rittenberg

and Ashton White

Respondents

-and-

Service Employees International Union Local 1 Canada

Intervenor

interiM DECISION

Adjudicator: Alison Renton

Date: May 31, 2010

Citation: 2010 HRTO 1219

Indexed as: Brooks v. North York General Hospital

1This is an Application filed on April 29, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") in which the applicant alleges discrimination on the basis of disability of employment and, specifically, a failure of the respondents to return her to work. The applicant identified that she was a member of Service Employees International Union Local 1 Canada ("the union") at the time of the alleged discrimination.

2In an earlier Interim Decision, 2010 HRTO 453 ("the Interim Decision"), the Tribunal noted that a Notice of Intent to Dismiss had been issued to the applicant directing her to provide submissions explaining the delay in filing her Application. The applicant filed a letter on February 17, 2010. In the letter she states, among other things, that she sought legal help and was refused. She states that she slipped into depression and suffered confusion, memory loss, speech problems and headaches. She submits that, due to these complications in her health, she was not able to complete the Application accurately, which caused the delay in filing it.

3Based upon the information provided by the applicant, it was not plain and obvious that her delay in filing the Application was not incurred in good faith. The Tribunal determined that it would serve the Application and a copy of the Interim Decision on the respondents. The Tribunal noted that this was not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code.

4The respondents have filed Responses. All of the respondents have requested that the Tribunal dismiss the Application because of delay and because they have been prejudiced in their ability to respond to the allegations. The applicant worked at Branson Hospital, as a non bargaining unit employee, until 1999 when she sustained injuries in a motor vehicle accident and went off work. She never returned to work, and has never been terminated. In 2000, as a result of the operation of the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21, Sched. B the Branson Hospital staff and the North York General Hospital staff were consolidated in different bargaining units, which affected the applicant.

5The respondents submit that the Application be dismissed because it was filed outside the one year time limit set out in section 34(1) of the Code. The respondents further note that the allegations against the personal respondent Esther Koven, who retired in 2002, and Dr. Rittenberg, who has not been associated with the hospital since 2003, are approximately 10 years old. The respondents further note that the applicant represented herself in various civil proceedings between 2007 and 2009 in which she was involved pertaining to the 1999 motor vehicle accident.

REQUEST TO INTERVENE

6The union filed a Request to Intervene. Specifically, the union requests that it be permitted to participate in the Application to provide factual information to the Tribunal. Neither the applicant nor the respondents have responded to the union's request.

7In these circumstances, the union's request to intervene is granted.

DELAY IN FILING APPLICATION

8Section 34 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) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay:

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 subsection 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.

9In the circumstances, the Tribunal directs that a hearing be scheduled in order to deal with the delay issue.

10The following directions shall apply to the hearing:

(a) the applicant should be prepared to proceed with her evidence first, by responding to the respondents' position with regard to the delay, including an explanation as to how the delay was incurred in good faith;

(b) if either party wishes to rely on any written materials (including written submissions, documents or case law) or facts not contained in the materials already filed with the Tribunal, they must deliver such additional material to the other party and file it with the Tribunal no later than two weeks before the date of the hearing.

11I am not seized of this matter.