David White v. Avon Maitland District School Board and Ontario Secondary School Teachers’ Federation, 2010 HRTO 2096

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David White

Applicant

-and-

Avon Maitland District School Board and

Ontario Secondary School Teachers’ Federation

Respondents

DECISION

Adjudicator: Alison Renton

Date: October 18, 2010

Citation: 2010 HRTO 2096

Indexed as: White v. Avon Maitland District School Board

APPEARANCES

David White, Applicant ) Michael Hassell, Counsel

Avon Maitland District ) School Board, Respondent ) Barry Brown, Counsel

Ontario Secondary School ) Teachers’ Federation, ) Joshua Phillips, Counsel Respondent )

1In this Application, filed on May 1, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), the applicant alleges that the respondents discriminated against him on the basis of disability in employment. The respondent Avon Maitland District School Board (the “school board”) was the applicant’s employer. The respondent Ontario Secondary School Teachers’ Federation (the “union”) was the applicant’s bargaining agent while he was employed by the school board.

2The respondents filed separate Responses requesting that the Tribunal dismiss the Application. Both respondents submit that the Application is untimely because it was filed more than one year after the incident to which the Application relates. They further submit that the Application does not disclose any alleged violation of the Code as against them and therefore there is no prima facie case of discrimination under the Code. The applicant did not file a Reply, indicating that there were no new issues raised in the Responses.

3The Tribunal issued an Interim Decision, 2010 HRTO 130 (the “Interim Decision”) scheduling a conference call hearing to hear the parties’ submissions on:

a. Whether the Application is timely or whether any delay was incurred in good faith?

b. Whether the applicant has raised allegations that, if accepted to be true, are sufficient to establish a violation of the Code?

4The conference call hearing was held on June 29, 2010 and all the parties participated in the hearing. For the reasons set out below, I have determined that the Application is untimely as against the school board and does not raise a prima facie case as against the union and, accordingly, the Application is dismissed.

The applicant’s submissions

5In August 2003, the applicant had a heart attack which required him to be off work and hospitalized for several months. He was advised by the school board of the number of sick credits he had available and was told that he would be taken off the payroll if he had not returned to work by the time his sick credits were exhausted and if he had not returned to work. The waiting period for long term disability (“LTD”) benefits exceeded his available sick credits. He alleges he was also told that if he had a relapse, the available number of sick credits of the LTD waiting period would be carried over. This information, he later learned, was inaccurate.

6When his sick credits were exhausted, the applicant returned to work in January 2004 because he believed that he would be terminated if he came off the school board’s payroll. He returned to work prematurely and without having to produce medical documentation establishing that he was fit to return to work. The school board failed to provide reasonable accommodation in the work to which he was assigned. His health declined and in June 2004, for medical reasons, he stopped working. He filed a disability claim in August 2004 and the insurer, Ontario Teachers’ Insurance Plan (“OTIP”), used June 2004 as the start of the LTD waiting period rather than September 2003 the date he initially went off work.

7He commenced a civil action for his LTD benefits against the insurance company which resulted in a settlement in June 2008. At this time he learned that, because the school board had not filed a disability claim when he was initially off work in September 2003, this significantly affected his benefit and pension entitlements.

8As a unionized employee who was ill, the applicant believed that the correct procedure was to go first to the union to address his concerns. The applicant believed for a long time that the union had taken action with respect to his concerns and he relied upon the union’s representations, when he was ill, that they would take action and that a grievance would be filed. However, he alleges the union acted in a conflict of interest, preferring the interests of the insurer over those of the applicant. Ultimately a grievance was filed in January 2008 but was withdrawn in January 2009 and it was not until this time that he realized that he would have to pursue the human rights issues himself. His Application was filed shortly after his grievance was withdrawn. The union should not be able to rely upon its own delay in arguing that the Application is untimely.

9He argues further that, if he had filed a complaint with the Ontario Human Rights Commission (“the Commission”), the Commission would likely have told him to pursue his issues first with his union and to return to the Commission if the issues were not addressed during the union procedure. If he had filed a complaint with the Commission, the school board would have alleged that the complaint was an abuse of process and would have requested it be dismissed under the former Code’s section 34.

10The applicant’s delay in filing his Application was made in good faith. He acted honestly and without any ulterior motive. The allegations raise a prima facie case against the school board and the union.

The school board’s submissions

11The school board submitted that the Application was out of time with the alleged breaches against it being in either 2003 or 2004 and the Application being filed in 2009. The school board noted that despite his illness, the applicant, with his wife’s assistance, communicated with the union in August 2005 and he commenced a civil action against it and the union in September 2007. It cannot be the case that the applicant’s delay in filing the Application was caused by incapacity to provide instructions to counsel to prosecute his civil claim.

12With respect to the applicant’s position that he relied upon the union’s representations, the school board stated that the applicant’s communications with the union do not allege that the school board had violated the Code or that he was seeking the union’s assistance in asserting his Code rights. Similarly, the grievance that was subsequently filed does not allege a breach of the Code.

13If the applicant learned in June 2008 for the first time that the school board had improperly followed its procedures for a return to work or a disability claim, that is not a Code issue and it does not affect the timeliness of his Application as against the school board.

14On the issue of prejudice, the school board submitted that it would like an opportunity to present evidence and/or submissions about the prejudice that it sustained as a result of the delay. The school board also submitted that, even if found to be timely, the allegations do not establish a prima facie case of discrimination.

The union’s submissions

15The union submitted that despite returning to work in January 2004, the applicant did not contact the union and raise any concerns about the school board allowing him to prematurely return to work, requiring accommodated work, or receiving faulty advice from the school board, although he was able to communicate with the school board from the fall of 2003 to June 2004. When his LTD benefits were approved in April 2005, he knew or ought to have known that there was a second waiting period and that he was not credited with his 78 sick days. He took no steps to pursue these issues, there are no allegations that he was unable to do so and no explanation for this delay.

16When he contacted the union in August 2005, he raised issues about the calculation and repayment of his benefits and did not request that the union file a grievance on his behalf. The applicant’s assertion in this proceeding that he was not aware until June 2008 of the second waiting period cannot be genuinely held as reflected in his August 2005 correspondence to the union. The first time that he requested the union to file a grievance was through his legal counsel in September 2007, which was the same time that he commenced civil action against the union.

17The union filed a grievance which was scheduled for arbitration in June 2009. In November 2008, the union reviewed the merits of the grievance and decided that because of the delay in filing it under the collective agreement, the union would not pursue the grievance to arbitration. The grievance did not raise any Code issues.

18The union submitted that it wanted an opportunity to present evidence and/or submissions about the prejudice that it sustained by the applicant’s delay in filing his Application.

19The allegations do not establish a prima facie case against the union. A failure to pursue a grievance does not amount to discrimination.

ANALYSIS

The Allegations against the School Board

20Section 34 of the Code requires that an application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(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.

21The applicant submits that he was not aware of the respondent school board’s alleged discrimination until in or around June 2008 when he attended a mediation with the insurance company. In essence, the applicant is requesting the Tribunal adopt the discoverability doctrine as an exception to the limitation period set out under section 34(2) of the Code.

22In Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal stated that the reasonable discoverability doctrine may provide an exception to a statutory limitation period. At paras. 23-24 the Tribunal stated:

What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide any 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. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

Consequently, I find that the applicant’s knowledge and awareness of the facts giving rise to the alleged breach of the Code crystallized in her mind if not in November 2006, when she and her brother were told their services were no longer required, then at least by May 3, 2007 when her mother was terminated. In bringing her Application more than 20 months after the alleged discrimination, and at least 15 months after it was reasonably discovered, she ran afoul of the extended limitation period introduced in the amended Code. She has neglected to provide a reasonable explanation for her delay.

23I do not accept the applicant’s submissions that in June 2008 he discovered the school board’s alleged discrimination when he attended a mediation with the insurance company. The documentation that he prepared (or which was prepared for him) over the years reveals that he was previously aware of this issue.

24In August 2005, and with the assistance of his wife, the applicant wrote a 3 paged typed letter to the union. In it, the applicant provided a chronology about his situation, starting in August 2003 when he had a heart attack, was hospitalized and unable to work. He recounts his attempts to communicate with the school board’s benefit officer, the information she provided him which he alleges was deficient and/or flawed, and his subsequent return to work from January to June 2004. He wrote:

(...) in the fall of 2004. At that same time OTIP advised that there would be a second 120 working day deductible applied because I had returned to work in January 2004 and that the 78 days could not be deducted.

(…) [T]he Teacher’s Pension Plan writes the same day requesting $3,012 plus accruing interest for the pension payments not made by OTIP during the second 120 day deductible for October 2004 to March 2005.

I’ve tried to discuss this claim with the Board and OTIP. The board has taken the position that they didn’t realize I was away from school back in 2003 and have suggested I reduce my medical to single member coverage to save money. OTIP suggest[s] that I should have read the LTD contract I didn’t have during the second semester to know there was a 100 day time limitation despite the board’s assurance the 78 [sick] days would apply. According to the board the re-drafted LTD contract was only sent out to the schools for delivery to the teachers in the fall of 2003. By that time I was already disabled and not there to receive it. Nor have I received it since. And even then, it was well past the time that I needed to have a copy to know about the terms that were in it. And I didn’t’ have access to the website at the critical time in 2003/4 as the board didn’t send me a LTD claims kit with the website address when I reported to them that I had a serious and disabling illness in 2003. The board not only didn’t handle my situation as they should have, they have confused the issue by getting me back to work with the promise that they would look after me if I had a relapse. (Emphasis in original)

25His letter raises further concerns about the amounts he was receiving from OTIP, and alleged overpayment amounts that OTIP and the Teacher’s Pension Plan were seeking to collect from the applicant. He concludes by asking the union to:

provide an advocate to help me achieve the following: (…) removal of the second 120 day waiting period and payment for the income loss during that time. My disability has been constant since 2003.

26The Statement of Claim filed against both respondents and dated September 2007 (and prepared by different counsel from his human rights proceedings), states as follows:

13. The Employee [of the school board] advised the [applicant] that there was a 6 month waiting period for disability benefits, and because he only had 78 sick days, an insufficient amount to cover the waiting period [for LTD benefits], he had to return to work immediately or his employment would be terminated.

14. As a result, the [applicant] was forced to return to work in or about January, 2004, to keep his employment with the [school] Board. As well, the Board did not file a disability claim with [the insurer] on his behalf.

15. In or about April, 2005, OTIP accepted the [applicant’s] long-term disability claim. However, OTIP used the starting date of June 25, 2004 for the 120 working day waiting period under the policy. As a result, the [applicant’s] monthly long-term disability benefits did not commence until March 8, 2005.

16. The [applicant] claims that the 120 day working day waiting period for long-term disability benefits should have commenced in September, 2003, when he contacted the [school] Board and advised that he was disabled and could not return to work, and that the start date for monthly long-term disability benefits from OTIP should have been in or about January, 2004.

17. The [applicant] claims that in or about September, 2005, the [applicant] contacted [the union] and advised [the union] that the [school] Board had delayed his claim for long-term disability benefits.

18. The [applicant] claims that at all material times [the union] has refused, failed or neglected to properly and adequately pursue or investigate on his behalf his grievance and complaints with the [school] Board.

19. The [applicant] claims that his injuries, damages and losses result solely from the negligence of the Defendants, their servants, agents and employees. The particulars of such negligence as against each defendant being as follows:

(I) AS AGAINST THE DEFENDANT AVON MAITLAND DISTRICT SCHOOL BOARD:

(a) It failed or neglected to submit an application for long-term disability benefits on behalf of the Plaintiff to OTIP in a timely manner;.

(II) AS AGAINST THE DEFENDANT ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION:

(a) It failed or neglected to properly or adequately pursue a grievance with the [school] Board on behalf of the [applicant]

27The Statement of Claim was dismissed by Court Order dated November 30, 2007.

28While the applicant’s concern about the school board’s failure to file a LTD claim on his behalf in September 2003 and the monetary consequences flowing from that were not expressed as clearly in his August 2005 letter to the union as they subsequently were in the 2007 Statement of Claim or in his Application, I find that as of fall 2004, as expressed in the August 2005 letter, the applicant was aware of and expressed concern about a second waiting period being used for his LTD entitlement. Accordingly, it was at this point that the one year limitation period started to run on the issue of the second waiting period.

29I find that the one year limitation period in relation to the applicant’s allegation that the school board improperly allowed him to return to work prematurely, by not requiring medical documentation to substantiate his return, and his allegations that the school board failed to accommodate him and/or provide him with modified work upon his return to work started to run in January 2004 when the applicant returned to work. I find that the applicant was aware, or ought to have been aware, that the school board was not accommodating him from January to June 2004, if the applicant required modified work. Having found that the Application as against the school board was filed outside of the limitation period under section 34(1), I must consider whether the applicant’s delay was incurred in good faith and what, if any, prejudice results to the respondents.

30In 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. As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, an applicant has a fairly high onus to meet this requirement:

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 inquiries about options for pursuing the alleged wrong.

31The applicant submits that he was ill, believed that he needed to address the issues with the union rather than filing a human rights complaint and that he was precluded under the former section 34 of the Code from bypassing the union and filing a complaint directly with the Ontario Human Rights Commission.

32The Code was significantly amended on June 30, 2008. Prior to that date, complainants filed human rights complaints to the Ontario Human Rights Commission (“the Commission”) and after that date, applicants filed Applications directly to the Tribunal. Section 34(1) of the former Code read as follows:

Where it appears to the Commission that,

a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

b) The subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

c) The complaint is not within the jurisdiction of the Commission; or

d) Facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

The Commission may, in its discretion, decide not to deal with the complaint.

33In this case, I am not persuaded that the delay in filing the Application was done in good faith. The applicant has baldly asserted that the Commission would have declined jurisdiction to deal with his issues pursuant to former section 34(1)(a) because he was represented by a union and could or should have grieved these issues. However, there is no evidence that the applicant raised the issues with the Commission and no evidence that the Commission declined to deal with his complaint. This is distinguishable from Amiamah v. Olymel S.E.C./L.P., 2009 HRTO 1750 where the applicant received written correspondence from the Commission declining to deal with his complaint.

34I do not find that the medical documentation produced by the applicant for the purposes of this hearing demonstrates that he was incapable of raising his issues within the timeframe established under the Code. The only medical documentation produced was a report by Dr. Kostuk dated March 26, 2004 to Dr. Fuller and was written while the applicant was working with the school board. The report does not state the applicant requires modified or accommodated work. Instead, it states:

He has no limitations on his activity. He does complain of feeling very tired. As you know, he teaches high school at Wingham and spends 3 hours on the road each day going back and forth from his home in London.

35I do not find that the delay in filing the Application as against the school board was incurred in good faith. The applicant was aware of his rights. His illness did not prevent him from commencing legal action in pursuit of those rights. He did not contact the Commission and is now, many years after the fact, speculating that the Commission would have declined jurisdiction over his complaint. Accordingly, the Application is dismissed against the school board.

36The Tribunal has held that if the applicant fails to demonstrate that the delay was incurred in good faith it is not necessary to make a determination as to whether a responding party has been substantially prejudiced by the delay: see Klein v. Toronto Zionist Council, 2009 HRTO 241; Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579; and Dean v. Brantford Office Machines, 2010 HRTO 385.

Allegations against the Union

37The failure of a union to represent a member is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by an employer. See Arias v. Centre for Spanish Speaking Peoples and Ontario Public Service Employees Union, 2009 HRTO 1025. In Traversy v. Mississauga Professional Firefighters Association Local 1212, 2009 HRTO 996, the Tribunal stated:

(….) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

38The applicant has alleged that the union failed to represent him and has treated him differently because of his disability. However, the documents that were submitted by the parties to the Tribunal demonstrate that the union considered the applicant’s issues and raised them with different entities. I note that in doing so, the applicant had not specifically alleged to the union that his human rights had been violated by the school board, and significantly did not allege that the school board has failed to accommodate him when he returned to work in January 2004.

39In 2005, the union forwarded the applicant’s correspondence to its pension officer and then communicated with the applicant and the school board in writing about various issues including the second waiting period issue. In February 2006, the union wrote to the applicant and provided him with a contact name and telephone number for someone at OTIP, someone different from its pensions officer who had been temporarily appointed as CEO of OTIP. Shortly after the applicant’s Statement of Claim was withdrawn, in January 2008 the union filed a grievance seeking compensation from the school board for LTD benefits during the second waiting period, additional premium costs, pension contributions and health damages. The grievance was withdrawn in January 2009, after the union reviewed its merits and determined that it was untimely.

40The fact that a union has not filed a grievance on behalf of a member or does not continue with a grievance does not, by itself, establish a violation of the Code. (See Traversy, supra, at para. 43.) While the union filed a grievance and subsequently withdrew it, the applicant has not established that the union treated him unequally because of his disability.

41The applicant has alleged that the union acted in a conflict of interest situation because its pensions officer was temporarily appointed as CEO of OTIP and therefore the union preferred the interests of OTIP over those of the applicant. Other than this assertion, the applicant has not provided any factual foundations to establish that the union treated him differently in this regard on the basis of his disability. Further, the documents that were filed with the Tribunal establish that the union advised the applicant about the situation with its pensions officer and subsequently provided the applicant with another contact person at OTIP.

42There is nothing in the applicant’s submissions to support a connection between the assertion of the Code ground to any differential treatment that he received from the union. Therefore, I am not satisfied that the applicant has established a prima facie case of discrimination against the union and the Application as against the union is dismissed.