Dorriesfield v. Domtar, 2010 HRTO 2190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harvey Dorriesfield

Applicant

-and-

Domtar Inc. and Communications, Energy and Paperworkers Union of Canada, Local 74

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: November 2, 2010

Citation: 2010 HRTO 2190

Indexed as: Dorriesfield v. Domtar

1This Application, filed on April 27, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), raises allegations that the respondents discriminated against the applicant on the basis of disability in the context of employment.

BACKGROUND

2The applicant names Domtar Inc. (“Domtar”), his former employer, and Communications, Energy and Paperworkers Union of Canada, Local 74 (“Union”), his former union as respondents.

3The applicant states that, at the material times, he had a sleep disorder. Although Domtar was aware of his disability, the applicant alleges that it repeatedly disciplined him and ultimately terminated his employment because he fell asleep at work. The applicant argues that this constitutes discrimination and a failure to accommodate.

4The applicant states that the Union discriminated against him by, among other things, failing to represent him appropriately, failing to assist him in obtaining accommodation, and ignoring the medical documentation available.

5Both respondents have filed Responses denying the allegations of discrimination. Both state, among other things, that the applicant failed to provide adequate medical documentation to substantiate his alleged disability.

6Domtar states that the applicant’s employment was terminated for just cause on June 27, 2007. Domtar and the Union seek an order dismissing the Application because it was filed more than one year after the last alleged incident of discrimination. Domtar also seeks to have the Application dismissed on the basis that the matter ought to be dealt with through a grievance proceeding and because the Application fails to disclose a prima facie case of discrimination against Domtar.

FACTS ALLEGED REGARDING THE TIMELINESS OF THE APPLICATION

7Domtar states that the applicant was dismissed for cause on June 27, 2007 and that a grievance was filed on his behalf on June 29, 2007. Domtar denied the grievance and it was not referred to arbitration.

8On January 25, 2008, approximately seven months after the termination of his employment, the applicant was in a motor vehicle accident and sustained serious brain injuries. The Office of the Public Guardian and Trustee (“OPGT”) has been appointed guardian for the applicant and is his substitute decision maker in this proceeding.

9Counsel for the applicant states that the applicant was unable to assert any right under the Code until the OPGT was appointed as his guardian and until legal counsel was obtained on his behalf.

10The materials filed on behalf of the applicant state the OPGT was appointed guardian for the applicant on March 26, 2008. There is no information regarding when legal counsel was retained, although counsel for the OPGT contacted the Union on December 15, 2008 to inquire about grievances filed on behalf of the applicant.

11The applicant argues that the cause of action under the Code was not immediately discovered by the OPGT and that the information only emerged in the litigation process involving the motor vehicle accident. The materials filed on behalf of the applicant do not indicate when the OPGT allegedly became aware of the cause of action under the Code, although the OPGT appears to have been aware of the issue as of at least December 15, 2008 when it sought information from the Union.

12In any event, the applicant argues that the one year limitation period does not begin to run until March of 2009, when counsel for the OPGT approached the respondents to request reinstatement and these requests were denied. In the alternative, he argues that the limitation period under the Code did not begin to run until January 8, 2008, when grievance rights expired under the collective agreement.

13Domtar argues that the applicable limitation period is six months, which is what the Code provided at the material time, prior to the coming into effect of the June 2008 amendments. It argues that the limitation period had already expired before the applicant’s motor vehicle injury. Domtar points out that the applicant provides no explanation for his failure to file an Application prior to the accident.

REQUEST TO DISMISS

Legal principles

14Section 34 of the Code 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.

15Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

16The initial onus is on the applicant to show that the delay in filing the Application was incurred in good faith. If he is able to establish good faith, the onus shifts to the respondents to show that they will suffer substantial prejudice as a result of the delay in filing the Application.

Was the Application filed more than one year after the last alleged incident of discrimination?

17In my view, the limitation period began to run on June 27, 2008, the date of the applicant’s dismissal. I cannot accept that the applicant is able to effectively restart the limitation period by petitioning the respondents to revisit decisions they made almost two years earlier. For that reason, I do not accept that the Union’s March 2009 decision not to reactive the grievance or Domtar’s March 2009 decision not to reinstate the applicant constitute incidents of discrimination for the purposes of calculating the time limits in section 34 of the Code.

18Similarly, the fact that the applicant may have had rights under a collective agreement does not effectively put the Code’s limitation period on pause. 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 Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991.

19Thus, the limitation period began to run on June 27, 2007. The Application was filed on April 27, 2009, 22 months after the last incident of alleged discrimination and 10 months outside the Code’s limitation period.

Was the delay incurred in good faith?

20I accept that the applicant was incapacitated and could not have asserted his legal rights from January 28, 2008 until the OPTG was appointed in March 26, 2008. The applicant has provided a good faith reason for this delay of approximately two months.

21The applicant asserts that the OPTG did not immediately discover that the applicant had a cause of action under the Code. He argues that the delay between the OPTG’s appointment and its discovery of the cause of action was in good faith. As I have indicated, the applicant’s materials do not indicate when the discovery was made, although OPTG did begin making inquiries in mid December 2008. At issue is a delay of at least approximately eight months.

22The issue of discoverability was addressed in Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:

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] O.J. 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] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).

23It may be that the OPTG was unaware of any rights under the Code. However, the applicant’s submissions have not addressed whether or not the OPTG had reason to make inquiries over the eight month period in question. Thus, based on the materials before me, I cannot determine whether the delay was incurred in good faith.

24The Registrar will schedule a three hour hearing to address the issue of whether the OPTG had reason to make inquires about the applicant’s rights under the Code between March 26, 2008 and that date the Application was filed.

25Fourteen days prior to the hearing, any party wishing to rely at the hearing on oral evidence must file with the Tribunal and deliver to the other party a list of proposed witnesses and a brief statement summarizing each witness’ expected evidence.

26Any party wishing to rely at the hearing on written materials or documents not already filed with the Tribunal must deliver such documents or information to the other parties and file them with the Registrar 14 days prior to the date of the hearing.

27I am not seized of this matter.