Jerry Hoblak v. St. Mary’s Cement, 2010 HRTO 1799

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerry Hoblak Applicant

-and-

St. Mary’s Cement, Colin Hill, Ian McEachren and Cindy McDonald Respondents

DECISION

Adjudicator: Judith Hinchman Date: September 1, 2010 Citation: 2010 HRTO 1799 Indexed as: Hoblak v. St. Mary’s Cement

APPEARANCES BY

Jerry Hoblak, Applicant ) On his own behalf

St. Mary’s Cement Inc., Colin Hill, Ian McEachren and Cindy McDonald, Respondents ) Genevieve M. Debane, Counsel

1On November 1, 2006, the applicant filed a Complaint (the “Complaint”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant abandoned this Complaint and filed an Application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. The applicant alleges discrimination in relation to employment on the basis of disability. Specifically the applicant alleges that the respondents failed to accommodate his disability.

2This Decision deals with the respondents’ request that the Application be dismissed for lack of jurisdiction on the basis of delay. Having heard the parties’ oral submissions on the preliminary request, the Tribunal makes the following Decision.

BACKGROUND AND PARTIES’ POSITION

3The corporate respondent supplies materials to the construction industry and at the relevant time ran a cement ready-mix operation where the applicant was employed beginning in June 1987. The applicant performed the duties of a Ready-Mix Truck Driver.

4The parties do not dispute that the applicant was injured prior to 1997 and that in 1997 he began to receive disability benefits. These ceased in 2002 and, despite his medical restrictions, the applicant was deemed to be able to do other work.

5The applicant alleges that he asked for modified duties in October 1997 and that he continued to make that request up until May 30, 2006. He alleges that at all times the respondents continued to deny him accomodation and that the last refusal occurred on May 30, 2006. Therefore the applicant argues his Complaint is timely.

6The respondents agree that in 1997 the corporate respondent did tell the applicant it could not accommodate his medical restrictions in his position of a Ready-Mix Truck Driver, nor did it have other work at the job site that it could offer given the restrictions. The respondents argue they were never advised that the applicant’s restrictions changed and that all medical information provided since 1997 communicated no improvement with respect to the applicant’s medical position. Therefore their position with respect to accomodation remained the same.

7The respondents argue that their continued refusals to give the applicant work at the Ready-Mix site because they could not accommodate the applicant’s medical restrictions are not separate events but merely continuing consequences of the employer’s initial position taken in 1997.

8The respondents further argue that to respond to the Application they would be prejudiced by the passage of time, in that documents will be difficult to locate and witnesses’ recollections will be impaired.

Decision

9Under Rule 4.2 of its Rules of Procedure for Transitional Applications, the Tribunal may dismiss part or all of an application that is outside the Tribunal’s jurisdiction.

Delay

10The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:

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.

11The Tribunal has confirmed that the statutory language makes it clear that section 34 applies to transitional applications made under section 53(5) of the Code. See Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12I agree with the respondents that the central allegation in this Application relates to an event that occurred well before one year prior to the filing of the Complaint. That event was the denial to the applicant’s initial request for accommodation in 1997. The question therefore is whether or not the Application alleges a series of discriminatory events, the last of which occurred within one year of the filing of the underlying Complaint.

Series of Incidents

13The applicant argues that the discrimination has been ongoing in that he continued to be denied accommodation up until a final meeting on the subject held May 30, 2006. The applicant alleges that a Functional Abilities Form presented to the corporate respondent in October 2003 listed changes to his medical restrictions and thus, at the least, any request for and denial of accommodation after that is a new incident.

14The respondents submit that the medical documents submitted since 1997 remained unchanged and consequently their position on accommodation remained unchanged.

15The documents submitted support the respondents’ position. For example, a letter dated October 27, 2003 from Barry Hutton, then corporate respondent Manager of Human Resources, acknowledges a meeting September 30, 2003, between the parties in which the applicant confirmed that he would never be able to drive a truck and also references an October 7, 2003 Functional Abilities Form completed by Dr. Richard Levy maintaining considerable medical restrictions that he stated were “indefinite.” By letter dated January 30, 2010, Dr. Levy chronicles his assessments of the applicant beginning in 2002 through December 20, 2005. This letter confirms that Dr. Levy’s opinion was that the applicant’s medical restrictions remained the same during that period and there is no evidence that the restrictions had eased since 1997.

16Although in 2003, upon learning from the applicant that he had received some retraining in the computer technician field, the corporate respondent communicated to the applicant an opportunity in the IT department that he might apply for, the documentary evidence is that it maintained its position first articulated in 1997 that it could not accommodate the applicant in the Ready-Mix Truck Driver position.

17I am persuaded that the evidence supports that the respondents were not presented with documentation that the applicant’s medical restrictions improved in the relevant period after 1997.

18The court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45 (ON S.C.D.C.), adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

19In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal reviewed the reasoning in Visic, supra and stated “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.” In Mafinezam, the Tribunal first identified the “incident” to which the application in that case related and then, after applying the rationale of Visic, found that the continuing effects of that incident did not constitute further incidents of discrimination or a series of incidents within the meaning of section 34(1).

20Applying the approach followed in Mafinezam, and distinguishing between incidents to which the Application relates as opposed to its continuing effects, the central allegation regarding failure to accommodate the applicant’s disability occurred in 1997. As such this allegation was not brought within the one-year time frame of the Code.

21The applicant’s allegations that he continued to contact the respondents about accomodating him with work at the Ready-Mix operation site and each time they refused are not new and separate contraventions of the Code. These are allegations of the continuing effects of the employer’s original position to not accommodate, that it merely reiterated each time. These allegations of continuing effects do not constitute further acts of discrimination beyond the alleged 1997 Code infringement and thus also were not brought within the one-year time frame required by the Code. As such, there was a delay within the meaning of section 34(1) in the filing of the Complaint underlying this Application.

Good Faith

22Having found that the Complaint underlying the Application was not filed within one year of the alleged discriminatory incident, if I am satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, I may still permit this Application to proceed.

23As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he or she did not pursue Code rights in a timely manner.

24The applicant’s reason for not filing the Complaint until 2006 is that it was his union’s responsibility to represent his interests under the collective agreement before he could file his Complaint.

25The 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. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. The same reasoning applies in this case where there was nothing to prevent the applicant from filing a separate human rights complaint even while his union was considering filing a grievance on his behalf. Even if I were to accept the applicant’s explanation that he needed his union to act first, the applicant did not pursue assistance from the union until after his long-term disability payments ceased in 2002, approximately five years after the respondents told him they oculd not accommodate his medical restrictions.

26For these reasons, I am not persuaded that the applicant has provided a reasonable explanation as to why he did not pursue his rights under the Code in a timely fashion.

Susbstantial Prejudice

27In view of my conclusions, it is not necessary to address the respondents’ arguments about substantial prejudice; however, I observe that given the passage of time since the incident alleged in 1997, it is reasonable to conclude that the respondents will be prejudiced in their ability to respond to this Application.

28I am satisfied that the circumstances in section 34(2) do not apply here and therefore the Application is dismissed for reasons of delay.

29The Application is accordingly dismissed.