Abutalib v. Toronto Police Services Board, 2010 HRTO 1697

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ishaq Abutalib

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: Dale Hewat

Date: August 18, 2010

Citation: 2010 HRTO 1697

Indexed as: Abutalib v. Toronto Police Services Board

APPEARANCES BY

Ishaq Syed Abutalib, Applicant ) Janet Stevens, Counsel

Toronto Police Services Board, )

Maria Ciani, Doug Reynolds, ) Sharmila M. Clark, Counsel

Graham Whitehead and )

William Blair, respondents )

ii

1This is an Application filed on June 17, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On March 30, 2010 a preliminary hearing was held to address the respondents’ Request for Order During Proceedings seeking dismissal of the Application on the basis that it was filed more than one year after the alleged discrimination and is therefore barred under section 34(1) of the Code. Alternatively, the respondents request dismissal of the Application under section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application. During the hearing, the applicant agreed to the removal of each of the personal respondents from this Application. The style of cause is amended accordingly.

Decision

2The Application is dismissed on the basis of delay. As a result, I do not need to deal with the respondents’ Request for Dismissal under section 45.1. The following are my reasons for the decision.

Background

3The applicant was hired as a Parking Enforcement Officer on December 7, 1982. He was suspended from duty on May 28, 2003 and then terminated from his position as a Parking Enforcement Officer effective July 17, 2003, according to the respondents, for poor work performance. At all times during his employment the applicant was covered by a collective agreement between the Toronto Police Services Board and the Toronto Police Association. The applicant alleges that he was discriminated in employment on the basis of disability. His human rights complaint was filed on May 8, 2006.

4The Toronto Police Association filed two grievances on behalf of the applicant asserting that the Toronto Police Services Board contravened the Code by discriminating against a person by failing to accommodate a member with a recognized disability. The first grievance, grieving the suspension, was brought on May 28, 2003 and the second grievance, grieving the applicant’s termination, was filed on August 12, 2003.

5The applicant had also retained separate legal counsel who advised the Toronto Police Association on August 13, 2003 that the applicant was considering filing a complaint with the Human Rights Commission (the “Commission”) but was concerned about the impact a complaint might have on the grievance. The applicant’s counsel also noted that given the six month time limit for filing a complaint with the Commission, he needed a prompt response. After an exchange of other correspondence, the Toronto Police Association provided a response to the applicant’s counsel on October 8, 2003 advising that it would not be filing a separate human rights complaint because the human rights issue, namely the failure to accommodate, was the central issue in the dismissal case. Applicant’s counsel was also advised that if the applicant wished to do so, he was not prevented from pursuing a human rights complaint on his own behalf.

6The applicant’s grievance of this termination was referred to arbitration and did proceed before Arbitrator Jules Bloch on five days throughout 2004 and 2005. The grievance was resolved and withdrawn by the Toronto Police Association and confirmation of the resolution was sent to the applicant by letter dated September 19, 2005. The resolution of the grievance resulted in the applicant resigning from his employment and receiving a lump sum payment for sick pay. There were no minutes of settlement or release provided by the applicant. The applicant was not satisfied with the resolution of his grievance and, as a result, on May 25, 2006, he also filed an Application under section 74 of the Labour Relations Act, 1995, S.O. c.1, Schedule A, alleging that the Toronto Police Association violated its duty of fair representation.

7In the human rights complaint filed on May 8, 2006 the applicant reviews the circumstances leading to his termination alleging that he was discriminated against due to his disability. He also states that he had filed a complaint to the Human Rights Coordinator of the Toronto Police Services Board and that his union, the Toronto Police Association, filed a grievance on his behalf that, from his perspective, was not resolved satisfactorily.

8In his Reply to the respondents; Request to Dismiss for delay, the applicant claimed that he contacted the Human Rights Commission on September 17, 2003 concerning his termination and spoke to a staff person named Jennifer Wiens stating that he wanted to file a complaint. The applicant alleged that Ms. Wiens advised him that the complaint would be held in abeyance until the grievance procedure was completed. The applicant was provided with a file number which he understood to mean that a complaint had been filed. Believing this to be the case, the applicant argued that the instant Application filed on May 8, 2006 was simply a reactivation of his original complaint initiated on September 17, 2003; and therefore, would have fallen within the six month time limit for filing of complaints under the Code at that time.

9Prior to the preliminary hearing in this matter, the Tribunal issued an Interim Decision, 2009 HRTO 2210, dated December 18, 2009 directing the Human Rights Commission to provide documentation related to the applicant’s original inquiry number, about whether Ms. Wiens or Ms. Riox were employed at the Commission and in what capacity, and any information pertaining to the inquiry number provided by the applicant.

10The Human Rights Commission responded to the Interim Decision and confirmed that an inquiry number was created when the applicant first contacted the Commission in 2003 but was not created by Ms. Wiens or Ms. Riox. The Commission also indicated that an inquiry number is usually deleted if a Complaint Form is not provided within six months. The Commission was able to discern that the applicant’s original inquiry number was closed at some point; however, it was reactivated on April 18, 2006 by the Commission’s intake unit, followed by the receipt of the applicant’s Complaint Form on May 8, 2006. According to the Commission the complaint was “filed” on May 8, 2006.

11The applicant submits that he maintained contact with the Commission in 2004 and again in 2006 just prior to submitting his complaint. With respect to the delay in waiting to contact the Commission from the resolution of his grievance in September 2005 until April 2006, the applicant stated that it took time to find legal counsel that could assist him with the complaint. Finally, the applicant noted that the inquiry number assigned to file in 2003 was reactivated in 2006 and argued that the reactivation of this number reaffirms that his original complaint was held in abeyance. The applicant further argued that the respondents were aware that the applicant had contacted the Commission but chose to ignore his complaint.

12The respondents assert that the last incident of alleged discrimination was in June 2003 when the applicant’s employment was terminated, almost three years before the filing of the complaint within the meaning of the Code. The respondents argue that the fact that the applicant did not agree with the ultimate resolution of his grievance does not serve to extend the time line for filing a complaint. In addition, the respondents noted that the applicant had legal counsel assisting him between 2003 and 2005 and that the applicant could have filed a complaint but chose not to do so.

Delay

13Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit and it also gives the Tribunal discretion to accept late applications in certain circumstances. The Tribunal has found that the provisions of section 34 are applicable to applications filed under the transition provisions of the Code. See Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael’s Hospital, 2009 HRTO 566; Chintaman v. Toronto District School Board, 2009 HRTO 1225.

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 Lifestyles 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 the application within one year when he or she seeks 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.

17The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

18In this case I am not persuaded that the delay in filing the Application was done in good faith. I cannot conclude that the applicant’s initial contact with the Commission on September 17, 2003 resulted in a formal human rights complaint being filed. Although the applicant had contacted the Commission in 2003 his initial inquiry was given a file number for the Commission’s intake purposes but was not considered “filed” within the meaning of the Code as confirmed by the Commission’s Response to the Tribunal’s earlier Interim Decision in this matter. There is also nothing in the documents provided by the Commission to confirm that the applicant was told that his complaint would be held in abeyance until the conclusion of his grievance arbitration, nor is there any decision to that effect that was issued by the Commission.

19The applicant also had the benefit of legal counsel who advised the Toronto Police Association that the applicant was considering filing a human rights complaint and who also asked the Association if they would be filing a separate human rights complaint for the applicant. The correspondence between the Toronto Police Association and the applicant’s counsel confirms that his counsel was aware of the six month time limit for filing a complaint under the Code, at that time, and was told that the Association would not be filing a human rights complaint but that the applicant was free to file a complaint if he chose to do so. The Toronto Police Association also advised the applicant’s counsel that, from their perspective, the essence of the grievance was the alleged discrimination on the basis of disability and the failure to accommodate the disability. There was no information that the applicant’s counsel took any further steps to ask the Human Rights Commission whether the applicant had filed a complaint and whether the applicant had been told that his complaint would be held in abeyance pending the outcome of the arbitration.

20What makes the most sense in this case is that the applicant was not satisfied with the outcome of his grievance arbitration and decided to return to the Human Rights Commission to file a complaint in 2006. In these circumstances it was not reasonable for the applicant to exhaust the arbitration process before resorting to the human rights complaint particularly when he had the benefit of legal counsel who had been advised by the Toronto Police Association in October 2003 that there was nothing to prevent the applicant from filing a separate human rights complaint even though his grievance was being dealt with in an arbitration proceeding.

21As I have found that the delay was not incurred in good faith, I do not need to consider the issue of whether the respondent experienced prejudice as a result of the delay.

22As a result, the Application is dismissed for delay.