Rosaline Kargbo v. Devil’s Pulpit Golf Association, 2010 HRTO 1970

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosaline Kargbo Applicant

-and-

Devil’s Pulpit Golf Association Respondent

interiM DECISION

Adjudicator: Alison Renton Date: September 28, 2010 Citation: 2010 HRTO 1970 Indexed as: Kargbo v. Devil’s Pulpit Golf Association

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 June 1, 2010 alleging discrimination in employment on the basis of disability. The applicant states that she was dismissed from her employment in November 2008. Through her counsel, she alleges that mental health issues prevented her from filing her Application earlier and from understanding a release that she signed subsequent to her termination.

2The respondents filed a Response on August 30, 2010 asking for an early dismissal of the Application on the basis that the applicant has signed a full and final release in respect of the subject matter of the Application. Attached to the Response was the Release signed and dated November 10, 2008. The applicant filed a Response to a Request for Order (“Response to RFOP”) responding to the respondent’s request for an early dismissal of the Application. The applicant reiterated the mental health issues as identified above and submitted that this affected her ability to file the Application in a timely manner and to understand the release that she signed. The applicant submits that she intends to produce medical documentation and witnesses on the issue of the applicant’s mental state and capacity in order to address these issues.

Delay in filing the Application

3Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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 subsection 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.

4Under section 34, the Tribunal has no jurisdiction to deal with an application 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.

5In 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. 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 that justifies exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

Signing of the Release

6The Tribunal has previously held that allowing an applicant to proceed in the face of a signed release would be an abuse of the Tribunal’s process. See Lachance v. Honda Canada, 2010 HRTO 1731. The threshold to establish duress is high as is the threshold for the applicant to establish that he or she did not appreciate the significance of signing a release by reason of mental illness or disability. See Parma v. Stoney Creek Lifecare, 2010 HRTO 501 and Rivard v. George Brown College, 2009 HRTO 2212.

7Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application without affording the parties an opportunity to make oral submissions. Accordingly, the Registrar will schedule a hearing to consider these preliminary issues and specifically whether the Application should be dismissed as a result of the release signed by the applicant dated November 10, 2008 and/or the Application being untimely.

8The applicant submits in her Response to RFOP that she is in the process of gathering medical evidence and anticipates that her mental health workers would be testifying at this preliminary hearing.

9If either party wishes to rely on any additional written materials (including written submissions, documents or case law) or facts not already before the Tribunal, or call witnesses, they must deliver such additional material (including a statement of the witness’ anticipated evidence) to the other party and file it with the Registrar 21 days before of the date of the hearing on the preliminary issues. The Tribunal’s decisions are found at www.CanLII.org. Following the hearing on the preliminary issues, the Tribunal will determine whether there is a basis to proceed with the Application, and may make further directions.

10I am not seized of this matter.