HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hugh Lambe
Applicant
-and-
OMERS Administration Corporation
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Lambe v. OMERS Administration
appearances BY
Hugh Lambe, Applicant ) Self-represented
OMERS Administration Corporation, Respondent ) Adrian Miedema, Counsel
INTRODUCTION
1The purpose of this Decision is to address whether the Application should be dismissed on a preliminary basis.
BACKGROUND
2The respondent manages a pension fund and allocates benefits to retired municipal employees.
3The applicant, who has a law degree, was employed as a Senior Compliance Officer in the respondent’s Financial Services Group from 1988 to 1999.
4On March 31, 1999, when the applicant was 55 years old, the respondent terminated his employment and offered him a severance package. He did not accept the offer, and retained legal counsel.
5At the time of the applicant’s dismissal, the section in the respondent’s Employee Handbook on retirement benefits provided that an employee who retired from the company with a minimum of ten years of active service, and was entitled to receive a normal, early or disability pension, was also entitled to continue to receive certain employee benefits (i.e. medical, dental and other non-pension benefits). The company’s pension plan provided for early retirement options from the age of 55.
6The negotiations between the applicant and the respondent with respect to his severance package lasted almost three years. For the first two years, the applicant was represented by legal counsel. In the third year, the applicant was self-represented.
7In February 2002, the applicant sent the respondent a signed release, which was standard in all respects, except for the following paragraph, which was added by the applicant:
Notwithstanding the foregoing, this Release does not include and hereby excepts the following: first, any and all pensions, retirement benefits, and other benefits that a member of the pension plan administered by the Releasee is entitled to receive upon retirement, or as a retiree receiving a pension; second, all medical and health benefits, long-term or short-term disability benefits, income or income replacement benefits, that an employee of the Releasee is entitled to receive, or is otherwise entitled to receive, either under the law, or pursuant to any public insurance plan, or pursuant to any insurance or similar contract to which the Releasee is or was a party, or otherwise, with respect to latent or delayed illnesses or disabilities, which existed or occurred during employment and up to the end of the notice period. [Emphasis added]
8The respondent refused to accept the release, and sent the applicant an amended release, which the applicant signed and returned to the respondent in March 2002. The aforementioned paragraph was amended to the following:
Notwithstanding the forgoing, this Release does not prevent the Releasor from taking any action to enforce the terms of the settlement. Nor does this Release prevent the Releasor from claiming and receiving any pension benefits as he is entitled to in accordance with the terms and conditions of the OMERS Pension Plan. Any eligibility under the pension plan is based on the service ending date of March 31, 1999. Lastly, this Release does not prevent the Releasor from claiming any medical, dental, long-term disability benefits or short-term disability benefits that the Releasor is entitled to receive as provided by the insurance carriers’ policies subject to the terms and of such policies and plans. Any entitlement under the insurance carriers’ policies is based on the settlement letter dated March 31, 1999 and the service date ending March 31, 1999 with the exception of Comprehensive Medical, Supplementary Hospital and Dental which the service date ended on January 31, 2000. [Emphasis added]
9In August 2003, when the applicant was 60 years old, he sent the respondent a signed Application for Retirement Pension – Deferred Members, which requested that he start receiving an early retirement pension the following month. The applicant began receiving his pension benefits effective September 1, 2003, but did not receive retirement benefits.
10The applicant turned 65 years of age in April 2008. He sent a letter of complaint dated December 20, 2008 to the respondent, which did not raise his individual situation, but generally stated:
OMERS currently has a policy whereby only those who actually retire while at OMERS receive certain health and dental benefits after retirement....
(…)
Assume that a person can elect early retirement after 25 years of service at OMERS. In the event that person is terminated after 24.5 years of employment, that person is ineligible for retirement benefits. This occurs because that person did not retire while at OMERS, and not through any decision of her or his own.
On the other hand, someone who worked at OMERS for 5 years and reaches retirement age while at OMERS, will receive retirement benefits.
It is possible therefore, that a person who works at OMERS for 5 years, receives full retirement benefits, while a person who works almost five times as long, i.e. 24.5 years, receives no retirement benefits. This “present regime” appears to be very iniquitous. [Emphasis added]
The letter went on to propose that the respondent change its eligibility requirements for receipt of retirement benefits.
11The respondent sent the applicant a letter dated January 22, 2009 in response, which stated in part:
As you are aware, the benefits provided to eligible OMERS staff include the eligibility to receive post-retirement (non-pension) benefits. However, in order to be eligible for post-retirement benefits an OMERS employee must:
Have 10 years of consecutive service as an OMERS employee prior to retirement, and
Must commence a pension from the OMERS Primary Pension Plan on the next month following termination of employment (i.e. start an immediate pension following termination and therefore must meet the minimum age requirement of 55 years).
The letter then rejected the applicant’s proposed changes to the eligibility requirements.
12The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 19, 2009, which alleged that the respondent discriminated against him with respect to employment and services because of his age.
13Specifically, the applicant alleged that the requirement that an employee commence a pension in the next month following termination of employment in order to receive retirement benefits is discriminatory because former employees over the age of 55 are treated differently in that some receive retirement benefits and some do not. He stated that he should have been receiving retirement benefits from the time he was receiving his pension benefits.
14The respondent filed a Response on July 2, 2009, which requested early dismissal of the Application because (1) the applicant signed a full and final release with respect to the same matter, and (2) the applicant did not provide a reasonable excuse for the excessive delay in filing his Application.
15The applicant filed a Response to a Request for an Order on July 16, 2009, which stated that the respondent’s Request for early dismissal of the Application should be denied because the Release did not release the respondent from claims for retirement benefits, and he did not file his Application out of time.
16The respondent and applicant both filed further written submissions on these two issues.
17In an Interim Decision, 2009 HRTO 1135, I decided that it would be fair, just and expeditious to hear oral submissions from the parties on three preliminary issues:
(a) Should the Application be dismissed on the basis that the applicant signed a Release?
(b) Should the Application be dismissed on the basis that it fails to raise allegations that disclose a prima facie case of discrimination?
(c) Should the Application be dismissed on the basis that it was not filed in a timely manner pursuant to section 34 of the Code?
18The hearing took place over half a day. In my view, the Application should be dismissed because it was not filed in a timely manner, and the applicant failed to establish that his delay in filing the Application was incurred in good faith. In light of my Decision on this issue, it is not necessary to address the other preliminary issues.
ONE-YEAR STATUTORY DEADLINE
19The 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:
- (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
20The applicant submitted that he filed his Application with the Tribunal in a timely manner because the denial of retirement benefits to him is ongoing. In the alternative, if there was a last alleged incident of discrimination, he stated that it occurred in January 2009, when the respondent denied his request to change its policy.
21The respondent submitted that the last alleged incident of discrimination occurred, at the latest, on September 1, 2003, when the applicant began receiving his pension benefits, but was not granted retirement benefits because he did not retire and begin receiving his pension immediately after the termination of his employment.
22The applicant submitted that even if the last alleged incident of discrimination occurred on September 1, 2003, his delay in filing his Application was incurred in good faith because it was not until he received the respondent’s letter in January 2009 that he discovered he had been discriminated against because of his age. Specifically, he stated that he found out that, in order to receive retirement benefits, he would have to have commenced receiving his pension benefits from the respondent’s plan in the next month following the termination of employment. He stated that it was his understanding up until that point was he was not eligible to receive retirement benefits until the age of 65. Accordingly, he stated that he acted with due diligence by filing his Application soon after receiving the letter from the respondent.
23The respondent submitted that the applicant’s delay in filing his Application was not incurred in good faith. Specifically, the respondent stated that the applicant’s plea of ignorance about the conditions for receiving retirement benefits lacks credibility because he has a law degree, worked for a pension fund for 11 years, retained a lawyer to negotiate his severance package, tried to negotiate a release that excluded retirement benefits from the release, and sent a letter to the respondent in December 2008 that indicated that he was aware of the conditions for receiving retirement benefits.
ANALYSIS AND DECISION
Last Alleged Incident of Discrimination
24I find that that the last alleged incident of discrimination occurred on September 1, 2003, when the applicant began receiving pension benefits, but did not receive retirement benefits because he did not meet the eligibility requirements.
25I do not accept the applicant’s submission that he filed his Application with the Tribunal in a timely manner because the denial of retirement benefits to him is ongoing, and that if there was a last alleged incident of discrimination, it occurred in January 2009, when he received the respondent’s letter that denied his request for a change in policy.
26In Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, the Ontario Divisional Court adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 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.
27Furthermore, in Mafinezam v. University of Toronto, 2010 HRTO 1495, this Tribunal reviewed the reasoning in Visic, supra, and stated at para. 13 that “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.”
28I agree with this approach, and find that the last alleged incident of discrimination occurred on September 1, 2003, when the applicant began receiving pension benefits, but did not receive retirement benefits, and that the continuing effects of this alleged act of discrimination (the ongoing failure to receive retirement benefits and the respondent’s January 22, 2009 letter that affirmed the eligibility requirements) do not in themselves constitute further acts of discrimination.
29I also do not accept the applicant’s submission that his Application is timely because he only discovered he had been discriminated against because of his age when he received the respondent’s January 22, 2009 letter.
30In 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.
31In my view, the reasonable discoverability doctrine is not applicable in this case. When the respondent terminated the applicant’s employment in 1999, the respondent’s Employee Handbook clearly stated that an employee who retired from the company with a minimum of ten years of active service, and was entitled to receive a normal, early or disability pension, was also entitled to continue to receive certain employee benefits in the form of retirement benefits.
32I agree with the respondent that the applicant cannot credibly claim that he did not know, and had no way of knowing, about the conditions for receiving retirement benefits given that he has a law degree, worked for a pension fund for 11 years, retained a lawyer to negotiate his severance package, tried to negotiate a release that excluded retirement benefits from the release, and sent a letter to the respondent in December 2008 that indicated that he was aware of the conditions for receiving retirement benefits.
33As such, regardless of what new information there was in the January 22, 2009 letter, when the applicant’s early retirement took effect on September 1, 2003, and he started receiving pension benefits, he knew or ought to have known that he was not receiving retirement benefits, and why he was not receiving such benefits.
Good Faith
34In view of the above, I am also not satisfied that the applicant’s delay in filing his Application with the Tribunal was incurred in good faith.
35In 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.
36In 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 CanLII 44920 (ON C.A.), (2002) 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).
37The applicant, who has a law degree and worked for 11 years as a Senior Compliance Officer with a pension fund, is on the high end of the spectrum in terms of sophistication. In my view, he has not offered a credible explanation for the delay, and even in its best light, his explanation shows a lack of due diligence.
38In view of my finding that the applicant’s delay in filing his 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
39Accordingly, the Application is dismissed.
Dated at Toronto, this 3rd day of November, 2010.
“Signed by”
Ken Bhattacharjee
Vice-chair