Laurie-Lee Darroch v. Township of King Fire and Emergency Services, 2010 HRTO 2268

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie-Lee Darroch

Applicant

-and-

Township of King Fire and Emergency Services

Respondent

DECISION

Adjudicator: Sherry Liang

Date: November 15, 2010

Citation: 2010 HRTO 2268

Indexed as: Darroch v. King (Township)

WRITTEN SUBMISSIONS BY

Laurie-Lee Darroch, Applicant ) Symon Zucker, Counsel

Township of King Fire and ) Gordon Weir, Counsel

Emergency Services, Respondent )

1This is an Application filed on March 24, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In its Response, the respondent (the “Township”) has requested that the Tribunal dismiss the Application on the basis that it has been filed beyond the time limits set by the Code.

3After receipt of the applicant’s Reply to a Response, the Tribunal requested further submissions from the parties on the respondent’s request to dismiss. Both parties filed further submissions. For the reasons that follow, the Tribunal finds that the Application has been filed beyond the one-year limit specified in the Code and the facts do not establish that the delay was incurred in good faith.

FACTS

4The applicant was a volunteer firefighter with the respondent. Although she states in her Application that she is still currently employed in that position, it appears that she has not worked as a volunteer firefighter for the Township since late 2006 or early 2007. She alleges that she experienced discrimination and harassment in the workplace between 2002 and 2006, including insulting comments, denial of training opportunities, and being ostracized or treated differently as a member of the crew on the basis of her gender. She complained about these incidents to the Township, which retained a consultant in December 2006 to investigate her complaint.

5The applicant met with the investigator, but became dissatisfied with the investigation. The respondent states, and the applicant does not dispute, that on or about February 26, 2007, she advised the investigator that she was not satisfied with the tone of the investigation and was seeking legal counsel. In her Reply, the applicant states that she “spent multiple hours assisting [the investigator] in the investigation until it reached the point where the investigation was not accurate and [word missing] toward the Township.”

6The Township advised the applicant in May 2007 that the consultant had completed its report, and that the Township was prepared to meet with the applicant to present the findings to her. It initially proposed a date for a meeting but for reasons which are not entirely clear, that date was cancelled. In November 2007, the Township wrote to the applicant indicating that due to the applicant’s failure to contact it, it was closing its file on the matter. Counsel for the applicant then wrote to the Township in the same month, requesting a copy of the investigator’s report as well as a re-scheduling of the meeting. The letter concluded with the statement that “if it is your intention to ignore our request or treat the matter as at an end we will pursue her rights in a different forum.”

7It appears that the Township did not respond to this letter and counsel for the applicant sent further faxes in December 2007 and then in June 2008 asking for a response to the letter of November 2007.

8There does not appear to have been any communication between the parties until September 2009, at which time counsel for the applicant renewed his request for a copy of the report as well as a meeting. The Township responded by stating that although it was not prepared to provide a copy of the report, it would meet with the applicant. The Township met with the applicant in February 2010.

DECISION

9Section 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 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.

10Under section 34, the Tribunal has no jurisdiction to deal with a complaint 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.

11As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

12In 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

13The Tribunal has stated that efforts to pursue one’s rights without filing an Application do not, without more, justify a waiver of the one-year limitation period under section 34(2): Gagne v. Maximum Mining, 2010 HRTO 689.

14As indicated above, the respondent requested that the Application be dismissed on the basis that it was filed beyond the time limits specified in the Code. In its letter requesting further submissions, the Tribunal directed the parties to address whether February 9, 2010 is the date of the last event to which the Application relates; whether the events of that date are the last incident in a series of incidents; and whether the delay in filing the application was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “incidents” to which the Application relates. In the Application, the applicant states that the date of the last event was February 9, 2010, the date of the meeting with the Township. Although not explicitly asserted, it appears that the applicant relies on this meeting as the “last incident” in a series of incidents under section 34(1) of the Code. The applicant does not explain the delay in filing the Application, beyond setting out the history of the communications between the parties.

16I find that the meeting of February 9, 2010 cannot be relied upon as an “incident” to which the Application relates. For the purposes of section 34(1), an “incident” must be an event upon which an allegation of a violation of the Code is based. There is no allegation that anything said or done by the Township during this meeting was discriminatory. The events of this meeting are, at most, a continuation of the applicant’s efforts to remedy the discrimination that she believed occurred during 2002 to 2006. It cannot be said that the events at the meeting were an independent act of discrimination, or part of a “series of incidents” within the meaning of section 34(1).

17It is true that the applicant alleges that the Township’s failure to adequately respond to her allegations of discrimination was in itself discriminatory. In this respect, the Application encompasses more than just the events of 2002 to 2006, but also the investigation, which the applicant alleges was skewed, and the failure by the Township to take any action in response to her complaints. But it is clear that the applicant’s dissatisfactions with the Township’s response crystallized by February 2007, when she decided not to continue to participate in the investigation or, at the latest, by late 2007 or early 2008 when the Township failed to respond to her requests for a copy of the report.

18Although applicant’s counsel renewed the requests for a copy of the report, there was a gap in communication between June 2008 and September 2009 which has not been explained. Even if the failure of the Township to respond to the communications from applicant’s counsel in 2007 and 2008 could be considered “incidents” of discrimination, there is no reasonable explanation for why the applicant could not have filed this Application about those matters until March 2010. The applicant had retained counsel by early 2007, and was expressing her dissatisfaction with the Township’s response to her complaints of discrimination and harassment. By November 2007, she was indicating that she may pursue her rights “in a different forum.” Although it may be reasonable for an applicant to wish to pursue other avenues before resorting to an application under the Code, it was not reasonable for this applicant to wait for a further period of more than two years before bringing this Application.

19In conclusion, I find that the meeting of February 9, 2010 cannot be relied on as the “last incident” of discrimination, and that the applicant has not provided a reasonable explanation for her delay in filing this Application about the matters preceding this meeting. As this Application has been brought beyond the one-year time limit in the Code and the applicant has not satisfied the onus to show that the delay was incurred in good faith, it is dismissed.