Colbeck v. Pinecrest-Queensway Community Health Centre, 2010 HRTO 1435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Colbeck

Applicant

-and-

Pinecrest-Queensway Community Health Centre, Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services and Alejandra Dubois and Sue Horrocks

Respondents

DECISION

Adjudicator: Sherry Liang

Date: June 29, 2010

Citation: 2010 HRTO 1435

Indexed as: Colbeck v. Pinecrest-Queensway Community Health Centre

WRITTEN SUBMISSIONS BY

Sarah Colbeck, Applicant ) Nigel McCready, Counsel

Pinecrest-Queensway Community Health ) Centre, Alejandra Dubois and ) John Paul Zubec, Counsel Sue Horrocks, Respondents )

Her Majesty the Queen in Right of Ontario ) as represented by the Minister of Children ) Anna Raimondo, Counsel and Youth Services, Respondent )

1This is an Application filed on January 25, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges discrimination in contract on the ground of disability. She alleges, among other things, that the termination of her contract for services in March 2008 was due to her personal views as a deaf person.

2The respondents have filed Responses to the Application, as well as Requests for an Order during Proceedings. They seek early dismissal of the Application on the basis that it was filed beyond the one-year time limit in section 34 of the Code. The applicant has filed a Reply, as well as a response to the Requests for Order, both through counsel. All parties have indicated in their written submissions that they wish the Tribunal to deal with the Requests for Order in writing.

BACKGROUND

3Until March 2008, the applicant provided services as an American Sign Language (ASL) Consultant to families with deaf children in the Ottawa area. In the respondent Ministry's materials, it explains that it has established a program called the Infant Hearing Program (IHP), to provide services to families with deaf children in Ontario. Agencies that are funded by the Ministry for IHP can either implement the IHP directly, or subcontract with other agencies or individuals to implement the services of the program through a fee for service arrangement.

4The Ministry provided funding to the respondent Pinecrest-Queensway Community Health Centre (Pinecrest), a non-profit community health centre in Ottawa, under the IHP program. Pinecrest in turn contracted with the Ottawa Deaf Centre (ODC) to deliver ASL services to its client families. The applicant was an ASL consultant contracted by the ODC to provide services to Pinecrest

5It should be noted that both the Ministry and Pinecrest take the position that they had no contract with the applicant and cannot therefore be held in violation of the Code for any actions taken with respect to the termination of the applicant's services to the IHP. It appears that the ODC is no longer in existence, having been dissolved in 2009.

6In March of 2008, the applicant's contract with the ODC was terminated. The material filed by the applicant in her response to the Requests for Order includes copies of email correspondence which indicate that on March 5, 2008, Pinecrest advised the ODC that based on concerns about the applicant's conduct, it would no longer accept services from the applicant within the IHP program. The correspondence also suggests that this led directly to the termination of the applicant's contract with the ODC, and that while the ODC was reluctant to do so, it felt it had no choice given Pinecrest's decision not to accept her services.

7Pinecrest sent an email to its IHP partner agencies on April 11, 2008, advising them that the applicant no longer provided ASL consultant services through the IHP program.

8The applicant states the termination of her contract arose out of disagreements between herself and staff at Pinecrest about the degree to which ASL should be promoted to families with deaf children, versus medical intervention and speech therapy. The applicant is a deaf person with ASL as her method of communication, and believes that she was removed from the program because of her personal views.

9The respondent Pinecrest states that most of the ODC's contractors are hearing impaired. It cites several concerns with the applicant's conduct during interactions with clients and denies that the termination of the applicant's contract with the ODC was related to any issue about the promotion of ASL over medical intervention and speech therapy.

10In her Application, the applicant states that the date of the last event of discrimination was May 11, 2009, the date of a meeting between the applicant and representatives of Pinecrest (it appears that the meeting was actually on May 12, but the difference is not significant). In her narrative, she states that following the termination of her services, she wrote emails to the involved parties and met with them to discuss the issues and to ask to be reinstated as an ASL consultant. She states that in late February 2009, she gave birth to her third child and had to put the matter on hold during the end of her pregnancy and after giving birth but that in March 2009, she wrote again to the parties to let them know about her concerns and to request a meeting.

11The applicant provided a copy of her letter of March 2009. In it, she refers to having requested a debriefing meeting, which did not take place, and to earlier correspondence conveying her side of the story. She states that her numerous attempts to communicate her side of the story to the parties have been to no avail, and that efforts by the ODC to have her return to the program were unsuccessful. The applicant refers to her belief that the root of the disagreement lies in her views about the teaching of ASL to children, and that the decision to remove her was due to her personal views as a deaf person. She states that she hopes "that I am not obligated to commence an application to the Human Rights Tribunal of Ontario" and that she wishes to discuss a resolution to the situation.

12The result of the letter of March 2009 was the meeting between the applicant and Pinecrest representatives on May 12, 2009. Pinecrest refused to reinstate the applicant to the IHP program. There is no information about the discussion during this meeting, apart from the applicant's statement that "it was a pleasant meeting but I was still told that I could not return to the Ottawa Infant Hearing Program."

DELAY

13Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal 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.

14Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

15As 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 for filing an application 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.

16In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. 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): Miller, above.

17In her Reply, the applicant submits that there is no delay in filing her Application because it was made less than a year after the last incident in a series of discriminatory incidents. She submits that the Application concerns more than the simple fact of her termination, but also encompassed the respondents' failure to answer her concerns about the priority being placed on medical intervention over the teaching of ASL and how the respondents' preference for one over the other pervaded their treatment of her and the families who rely on their programs.

18She states that although she was terminated in March of 2008, she kept trying until May of 2009 to convince the respondents to act to correct their discriminatory practices. She states that the final incident in the series of discriminatory incidents was the respondent Pinecrest's refusal in May of 2009 "to correct its behaviour. "

19The Reply also submits that if the Application was not filed within one year of the incident in question, the delay was incurred in good faith and caused no prejudice to the respondents. The applicant states that "the demands of caring for my new child and my other two children, combined with the challenges of providing for my family as a single parent, made it very difficult to find time to pursue this matter." She states that these challenges and the resulting delay were exacerbated by the respondents' discriminatory behaviour. Although the Reply does not provide more information than this on her challenges, the Application states that the applicant was depressed for months and could not function very well. She also states that she moved to Belleville to find employment. She also states that she had an eating disorder which became exacerbated during this time.

20In their Requests for Order, Pinecrest and the Ministry submit that the relevant date for the purpose of applying the one-year time limit is either March 2008, when the applicant's contract was terminated or, at the latest, April 2008 when the email was circulated. As this Application was filed in January, 2010, it is untimely. They also submit that the applicant's efforts to pursue her rights following her termination do not extend the time limit, and refer in this regard to the decision in Gagne v. Maximum Mining, 2010 HRTO 689.

21Further, the respondents submit that the applicant has not established that the delay in filing the Application was incurred in good faith. In its Request for Order, Pinecrest submits that there is no medical evidence to support the conclusion that the applicant was unable to pursue her rights earlier. It also refers to the various actions the applicant was able to take following her termination. The Ministry's submissions are to similar effect. It also notes that there is no medical evidence despite the applicant's assertions that her mental and physical health was affected by the events leading up to the filing of the Application.

22The applicant's response to the Requests states that the Application addresses a series of events that began during her employment and continued until May 2009. If there is delay, she submits, it was incurred in good faith. Her response does not elaborate on her circumstances to any degree. She refers to the demands of a difficult pregnancy and a newborn child, while caring for two other children, the demands of being a single parent while pursuing a degree, and the demands of moving to a new city. She states that she received treatment from a counsellor respecting her termination. However, she does not provide any medical evidence in support of her assertions about her mental and physical health following her termination, nor any other documentary evidence about her personal circumstances.

23As indicated above, all parties were content with this matter being decided on the basis of the written submissions.

24In this case, the first question I must decide is whether, as the applicant asserts, there is a "series of incidents", ending in May 2009. I find that there is not. The applicant lists as part of a "series of incidents" the events leading up to her termination, the termination of her contract in March 2008, the email communication in April 2008, and the meeting of May 2009 and accompanying refusal to reinstate her to the program. She also includes certain correspondence as part of the "series". On the material before me, I find that the only events that could be considered as part of a "series of incidents" for the purpose of section 34 are the termination in March 2008 and email of April 2008. They are events which are alleged to be acts of discrimination. The other "events" are the interactions between the applicant and respondents representing her efforts to remedy the alleged acts of discrimination. They are not independent acts that could be considered as incidents triggering a claim of discrimination, but simply confirmation of the original action taken by the relevant parties. As such they fall within the type of actions discussed in Gagne, above, in which the Tribunal stated that "efforts to pursue one's rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2)."

25Although, as indicated above, the applicant asserted that her claim encompassed the respondents' "failure to answer [her] concerns" about the priority being placed on medical intervention over the teaching of ASL and "how the Respondents' preference for one over the other pervaded their treatment of [her] and the families who rely on their programs, the only facts cited are the continuing refusal by Pinecrest to reinstate her into the IHP program.

26I therefore find that the last incident to which the Application relates is either the termination in March 2008 or the email circulated in April 2008. As the Application was filed more than a year following these incidents, I must consider whether the applicant has established that the delay was incurred in good faith.

27I am unable to find that the applicant has met that onus. Eleven months passed between April 2008 and March 2009, when the applicant asked for a meeting with the respondents. Following that meeting which took place in May of 2009, a further 8 months passed before this Application was filed. The applicant has referred to her circumstances following her termination, and the psychological and physical impact on her. She has also referred to certain personal challenges during that time. Yet she has provided very little detail about these events or circumstances, and no documentary evidence in support of any of her assertions. It should be noted that the respondents expressly raised the absence of documentary evidence of her mental or physical condition. The applicant did not provide any, and expressly agreed to this matter being dealt with on the basis of the written material.

28I do not doubt that the applicant faced challenging circumstances, as do many applicants before the Tribunal. It does appear that despite these circumstances, she was able to complete a degree, look for and obtain other employment and move sometime between April 2008 and January 2010. She also refers to efforts before and after giving birth to persuade Pinecrest to reverse its decision. Very shortly after she gave birth in February of 2009, she requested and ultimately took part in the meeting with Pinecrest representatives.

29The applicant was clearly able to engage in some meaningful efforts to improve her situation. In this context, I find that the applicant's general assertions about her mental and physical condition, as well as her general assertions about her personal challenges, are not sufficient to establish a reasonable explanation for her failure to file the Application between April 2008 and January 2010.

30In view of this conclusion, it is not necessary to deal with the position taken by the respondents that they would be substantially prejudiced in responding to the Application as a result of the dissolution of the ODC.

31It is also not necessary to address the other issue raised in the Requests for Order, whether the Application raises a prima facie case of a violation of the Code on a prohibited ground.

32In the result, the Application is dismissed.