LeBlanc v. Ontario Public Service Employees Union Local 500, 2010 HRTO 1770

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dolly LeBlanc Applicant

-and-

Ontario Public Service Employees Union, Local 500 Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: August 27, 2010 Citation: 2010 HRTO 1770 Indexed as: LeBlanc v. Ontario Public Service Employees Union Local 500

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on March 3, 2010, alleging discrimination in employment on the basis of age. The applicant alleges that the collective agreement, applicable to her employment, denies certain benefits to her because she is over 65 years of age. The Application indicates that the date of the last event is July 8, 2008, but it appears to be the date that the collective agreement was ratified, and not indicative of when she might have applied for or been refused any benefits.

2A Notice of Intent to Dismiss (“NOID”) was issued on June 8, 2010 indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination, and the applicant had not fully explained how the delay was incurred in good faith and why she believes no substantial prejudice will result to any person affected by the delay. The Registrar requested submissions on these issues.

3In response to the NOID, the applicant provided submissions which state that the Application is not out of time because the discrimination is ongoing given that every time the applicant is denied benefits, a new incident of discrimination takes place.

DELAY

4Section 34 states, in part:

(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.

5As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

6The Application describes the alleged discrimination through attached email communications between the applicant and the respondent. In an email dated January 20, 2010, the applicant, who was 66 years old at the time, wrote that union members are no longer eligible for short term disability once they reach the age of 65. The email describes how the applicant has recently been diagnosed with cardiac problems requiring surgery, and blood cancer requiring a bone marrow transplant. The email states that she had her spleen removed October 1, 2009, and that she is finding it very difficult to continue working given her health problems.

7Given the applicant’s submissions and her recent health problems described in the Application, including those arising from surgery on October 1, 2009 after which time the applicant was allegedly unable to access short term disability on the basis of her age, I am not satisfied that it is plain and obvious that the Application is filed outside the one year limitation period. Accordingly, the Tribunal will continue to deal with the Application.

8This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application.

9I am not seized of this matter.