Grace Boodhoo v. McMaster University, 2010 HRTO 1757

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Boodhoo

Applicant

-and-

McMaster University

Respondent

DECISION

Adjudicator: Dale Hewat

Date: August 26, 2010

Citation: 2010 HRTO 1757

Indexed as: Boodhoo v. McMaster University

APPEARANCES BY

Grace Boodhoo, Applicant ) Michael Stanton, Counsel

McMaster University, Respondent )

) George Avram, Counsel

1This is an Application filed on June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) claiming discrimination in employment on the basis of colour and disability.

2On April 6, 2010 a preliminary hearing was held to address the respondent’s 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 respondent requested dismissal of the Application on the basis that the subject matter of the Application was settled and the applicant signed a full and final release. Finally the respondent sought early dismissal of the Application arguing that it does not establish a prima facie case of discrimination within the meaning of the Code.

3At the preliminary hearing the applicant was permitted to testify and to be questioned about the reasons for her delay in filing her human rights complaint

Decision

4The Application is dismissed on the basis of delay. As a result, I do not need to deal with the respondent’s requests for dismissal on other grounds. The following are my reasons for the decision.

Background

5The applicant was employed in a clerical position with McMaster University beginning in 1986. Between November 1994 and October 1996, the applicant was in receipt of Long Term Disability benefits because she was unable to perform her regular duties due to depression which began after the death of her son in July 1993. At all material times during the LTD period the respondent’s insurer, Sun Life, administered and paid LTD benefits to the applicant.

6In July 1996, Sun Life advised the applicant that it did not consider her to be totally and permanently disabled in accordance with its LTD Policy. As a result, the applicant stopped receiving LTD benefits on October 12, 1996. The applicant met with representatives of the respondent on October 15, 1996 and was offered an early retirement package. Ultimately the applicant agreed to a negotiated package on October 30, 1996 that provided a lump sum payment of 13 months salary and vacation pay, followed by payment of pension benefits. As retiree of McMaster, the applicant also became eligible for any group benefits available to retirees, including a bursary or tuition waiver for herself and her dependents and spouse. McMaster also agreed to pay the cost of 3 counselling sessions and offer additional sessions to the applicant at a preferential rate.

7The applicant disputes the validity of the release that she signed as part of the retirement package in October 1996 on the basis that she did not have mental capacity at the time to understand or appreciate the terms of the agreement. In addition, the applicant claims that she did not have the benefit of legal counsel; however, in her testimony she admitted that she did contact a lawyer and also had assistance from a colleague to help her negotiate the terms of the retirement package.

8The only medical document filed with the Application was a letter dated October 16, 1996 from the applicant’s physician, Dr. Brunton, to Sun Life asking that they reconsider their decision to cease paying long term disability benefits and recommendation that the applicant return to work. In the letter Dr. Brunton notes that Sun Life’s decision may be premature because the applicant was continuing to show features of depression and, in that in the Doctor’s opinion, the applicant was not in a position in October 1996 to return to work full time.

9The applicant filed her original human rights complaint on October 23, 2006, almost ten years after she accepted the retirement package. The thrust of the applicant’s complaint is that the respondent discriminated against her on the basis of disability and colour by not giving her the option to transfer to long term disability benefits like other staff members who were on a medical leave of absence. According to the applicant, the respondent ignored the fact that in October 1996 she remained in therapy for depression and that her doctor was advising that she not return to work. The applicant claims that she should have been placed on long term disability benefits and that as a result of her taking an early retirement package she received a significantly reduced pension.

10Between 1996 and 2006, the applicant transferred her lump sum payment into an RRSP account, continued to receive pension and retiree benefits and the applicant and 2 of her children attended and completed McMaster University courses at no cost. The applicant claimed that after signing the retirement package in 1996 she slowly began to recover. She stated that sometime in either 2000 or 2001 she spoke with a union representative of McMaster University Union, CAW Local 555, about her retirement status. The representative advised her to contact Human Resources. The applicant admitted that it took her another year to get in touch the Human Resources department because she could not come to terms with challenging the respondent. However, it wasn’t until 2006 when the applicant was graduating that she found the courage to do something about her situation. The applicant stated that she became upset in 2006 when an employee, who was also one of the applicant’s students, received an award from McMaster. The applicant testified that when she saw how well this employee was treated, she felt “beaten to the ground” and she began to think about better options that the respondent could have offered her in 1996 rather than early retirement. She indicated that after this incident, she spoke with Mr. Roots, President of McMaster University Union, on October 2, 2006, who advised her to seek an alternative course of action regarding her pension complaint.

11In terms of her explanation for the delay in filing her human rights complaint, the applicant explained that in addition to her personal hardship and her lack of will to raise a claim against the respondent, she was busy working on completing university courses and that she had distractions during the summer months. The applicant also indicated that is took her a long time to prepare her complaint.

Delay

12Section 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.

13Under 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.

14As 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.

15In 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. As well, the Tribunal in Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343, has stated that even severe inconvenience, including medical and emotional factors, with no supporting evidence, is not sufficient to demonstrate that a delay was incurred in good faith.

16In this case I am not persuaded that the delay in filing the Application was done in good faith. The date of the last incident, within the meaning of section 34, is October 30, 1996. While it is clear that the applicant was suffering from personal hardship, she did not provide any medical or other supporting evidence to support her inability to file a claim within the 6 month time period required at the time under the Code. The only document that she did produce was the October 16, 1996 letter from Dr. Brunton which was directed to the insurer Sun Life, not the respondent, and which dealt with the Doctor’s concern about the ability of the applicant to return to work at that time.

17Even assuming the applicant disputed the release she signed as part of the early retirement package, there was no reasonable explanation of why it took the applicant almost ten years to file her human rights complaint. During the ten year period, the applicant received a lump sum payment that she invested, an insurance payment, counselling sessions at a reduced rate, pension payments and benefits and retiree benefits including tuition bursaries for her and her dependents. The applicant benefitted from each of these payments for almost a decade without disputing them in any formal manner. While it is evident that the applicant did suffer from depression, it is clear from her testimony that she was able to seek out assistance from a lawyer and a colleague to help her negotiate the retirement package in 1996. She also contacted the Union sometime in 2000 or 2001and then contacted Human Resources a year later but made no attempts to file a human rights complaint or to retain any other professionals to assist her. The applicant also admitted that she did begin to recover and was able to return to University to take courses culminating in her graduation in 2006. In these circumstances, the applicant’s explanation that she didn’t have the strength to challenge the respondent and that she was busy with essays, university work and other events during the summer months is not sufficient to demonstrate that the delay was incurred in good faith.

18As 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.

19As a result, the Application is dismissed for delay.