Cooper v. Goodmans, 2010 HRTO 1969

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nyoka Cooper

Applicant

-and-

Goodmans LLP

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: September 28, 2010

Citation: 2010 HRTO 1969

Indexed as: Cooper v. Goodmans

WRITTEN SUBMISSIONS BY

Nyoka Cooper, Applicant ) Self-represented

Goodmans LLP, Respondent ) Joseph Morrison, Counsel )

INTRODUCTION

1The purpose of this Decision is to address the respondent’s request to dismiss the Application on the basis that it was not filed with the Tribunal within the one-year statutory deadline.

BACKGROUND

2The applicant was employed as a legal assistant by the respondent. In the spring or summer of 2006, she became pregnant.

3On September 8, 2006, the applicant filed a complaint with the Ontario Human Rights Commission (the “Commission”), which alleged that the respondent harassed and discriminated against her with respect to employment because of her race, colour and sex. Her allegations related to unequal pay and a series of disciplinary warnings, which culminated in a warning that the respondent would suspend her if she failed to fill out and return a pregnancy and parental leave form by September 13.

4On September 13, 2006, the respondent suspended the applicant from employment without pay on the basis that she had not filled out and returned the requested form.

5In March 2007, the applicant gave birth to her baby.

6In the summer of 2007, the applicant moved to a new address. She informed the Commission of her new address, but not the respondent.

7On August 28, 2007, the applicant withdrew her complaint at the Commission. The Commission sent a letter to the applicant at her new address, which was copied to the respondent, and confirmed that she had withdrawn her complaint.

8On September 11, 2007, the respondent sent the applicant a termination of employment letter by registered mail to her previous address. The letter stated that the respondent terminated the applicant’s employment with immediate effect because she had not satisfied any of the conditions for a return to work, and had not communicated any intention to do so over the previous year. The letter was returned to the respondent as undeliverable.

9In March 2008, the applicant completed 52 weeks of pregnancy and parental leave pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, but did not contact the respondent.

10On February 20, 2009, the applicant sent the respondent an email, which stated that she was now willing to sign the pregnancy and parental leave form, and asked when she would be able to return to work.

11On February 23, 2009, the respondent sent the applicant an email that informed her that her employment had been terminated on September 11, 2007. The termination of employment letter was attached to the email.

12On December 14, 2009, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) with this Tribunal, which alleged that the respondent had harassed and discriminated against her with respect to employment because of her race, colour, ancestry, place of origin, ethnic origin, and sex, and subjected her to reprisal. Her Application was nearly identical to her complaint to the Commission, except that she further alleged that the respondent had suspended her without pay and terminated her employment.

13In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: February 23, 2009.

14The respondent filed a Response on May 5, 2010, which requested, among other things, that the Tribunal dismiss the Application on the basis that it was not filed with the Tribunal within the one-year statutory deadline. The respondent stated that the last alleged incident of discrimination occurred on September 11, 2007, not February 23, 2009.

15In an Interim Decision, 2010 HRTO 1357, the Tribunal requested further submissions and supporting documents from the parties on the timeliness issue. Both parties filed submissions.

ONE-YEAR STATUTORY DEADLINE

16The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

SUBMISSIONS

17The applicant submitted that the last alleged incident of discrimination occurred on February 23, 2009, when she received the termination of employment letter from the respondent. She also stated that as soon as she found out that the respondent had terminated her employment, she researched her rights and the new human rights process, and filed her Application in December, which was before the one-year statutory deadline.

18The respondent submitted that the last alleged incident of discrimination occurred on September 11, 2007, when it terminated the applicant’s employment, and that the applicant’s late filing of her Application was not incurred in good faith. Specifically, the respondent stated that the applicant moved, but failed to provide them with her new mailing address, and also failed to contact them at all until nearly two and half years after her suspension.

19In her submissions, the applicant admitted that she moved and did not provide the respondent with her new address, but stated that she had requested that Canada Post forward her mail. She also stated that the respondent should have seen her new address on the closing letter that the Commission sent to the parties, or alternatively, should have sent the letter to her emergency contact on file when it was returned as undeliverable. She further stated that since the respondent suspended her, it was the respondent’s responsibility to contact her, not her responsibility to contact the respondent.

20The respondent submitted that the onus is on an employee, when she is off on a leave or a suspension, to notify her employer of any change in address so that the employer can contact the employee. The respondent also stated that the latest that the applicant should have contacted the respondent was 12 months after the birth of her baby, which is when an employee who is on a pregnancy and parental leave would normally contact an employer.

ANALYSIS AND DECISION

Reasonable Discoverability Doctrine

21I find that that the last alleged incident of discrimination occurred on September 11, 2007, when the respondent terminated the applicant’s employment.

22However, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal stated at paras. 23-24 that the reasonable discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case.

23For the reasons set out below, my view is that the applicant should have reasonably discovered the last alleged incident of discrimination by no later than March 2008, when she completed 52 weeks of pregnancy and parental leave pursuant to the Employment Standards Act.

24As such, whether one counts from the date when the last alleged incident of discrimination occurred (September 11, 2007), or the date the applicant should have reasonably discovered the last alleged incident (March 2008), the filing of the Application on December 14, 2009 was beyond the one-year statutory deadline.

Good Faith

25In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks 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 Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period 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 may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, 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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

26In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

27I am not satisfied that the applicant’s delay in filing her Application with the Tribunal was incurred in good faith. In my view, even in its best light, her explanation for the delay shows willful blindness and a lack of due diligence.

28I do not accept the applicant’s submission that she had no obligation to contact the respondent until nearly two and a half years after the respondent suspended her without pay. In my view, given her suspension and the allegations in her complaint to the Commission, she must have, or certainly ought to have, known that her employment was at risk of being terminated if she failed to contact the respondent within a reasonable period of time. Two and a half years is well beyond a reasonable period of time. Even if I accept that it was not her fault that the termination of employment letter failed to reach her when it was first sent out, it is inexplicable to me why she did not contact the respondent at the time she withdrew her human rights complaint, or at latest, after she completed 52 weeks of pregnancy and parental leave pursuant to the Employment Standards Act. In fact, she waited until 11 months after the end of her pregnancy and parental leave entitlement to contact the respondent.

29I also do not accept the applicant’s submission that she could not file her Application until nearly 10 months after she received the termination of employment letter because she had to research her rights and the new human rights process. Given her legal background and the fact that her new Application to the Tribunal was nearly identical to her complaint to the Commission, she could have filed her Application with the Tribunal in a far more timely manner.

30In view of my finding that the applicant’s delay in filing her Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

31The Application is dismissed.