HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kathryn Lichty
Applicant
-and-
Waterloo Region Grand River Transit
Respondent
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Lichty v. Waterloo Region Grand River Transit
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on June 26, 2009 alleging discrimination with respect to employment and goods, services and facilities on the ground of disability. The applicant, who had been off work since October 2004 due to a disability, alleges that the respondent discriminated against her when it terminated her collective agreement benefit entitlements on June 30, 2008.
2The respondent filed a Response on November 23, 2009 denying that it had discriminated against the applicant. The respondent states that the applicant had been absent from work since June 2008 due to a disability. The applicant’s collective agreement benefits were terminated on June 30, 2008, in accordance with Schedule “C” of the collective agreement, because the applicant had been absent from work without pay for more than two years. Schedule “C” of the collective agreement states, in part:
… For employees who are in an unpaid state due to illness, provisions of Schedule C shall not apply beyond twenty-four (24) months of the employee being in an unpaid state.
3The CAW Local 4304 was identified as an affected person although it did not file a Request to Intervene.
4The applicant filed a Reply on January 4, 2010. A mediation was scheduled for August 9, 2010 with the Tribunal, but was not successful.
5On September 30, 2010, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to amend the Application. The respondent has not filed a Response to the RFOP and the time for doing so has passed. The CAW Local 4304 has not responded to the RFOP.
6In considering requests to amend applications under section 34 of the Code, the Tribunal generally examines the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; Dunford v. Holiday Ford Sales, 2009 HRTO 1563 and Shah v. LOFT Community Services, 2010 HRTO 2165.
7In the RFOP the applicant submits that she learned at the August 2010 mediation that her employment had been terminated on June 30, 2008 at the same time her Schedule C benefits were terminated. She submits that previous to the mediation she was not aware that she had been dismissed. This additional allegation appears to raise a new and distinct concern from the allegations of discrimination originally made in the Application. This new allegation is being raised more than two years from the date of the alleged termination of benefits, but less than two months after the applicant alleges that she first became aware of her dismissal.
8The Tribunal does not know if the respondent takes issue with the allegation that the applicant’s employment was terminated in June 2008 as the applicant’s employment status is not referenced in the Response and the respondent did not file a Response to the RFOP. Further, the Tribunal does not know if the respondent takes issue with this allegation being raised based on information obtained by the applicant at the Tribunal’s mediation and after she signed a Confidentiality Agreement.
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 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.
10In order to satisfy the Tribunal that the delay was incurred in good faith, the individual 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 (in this case individuals) to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
11In the circumstances of this Application, I find it appropriate to convene a 2 hour conference call hearing to hear the parties’ submissions on the following issue:
a) Should the applicant be allowed to amend her Application to include the June 30, 2008 termination of employment in light of section 34 of the Code?
b) Was the applicant’s delay of over two years in raising the issue of her dismissal incurred in good faith and will any substantial prejudice result to a person affected by the delay?
12If any party, or the CAW Local 4304, wishes to file any documentation, including facts, material or caselaw, they are required to deliver such documentation to the other party and the CAW Local 4304 and file it with the Tribunal no later than 14 days prior to the date of the conference call hearing.
13The Tribunal’s cases are found on www.canlii.org.
14I am not seized of this matter.
Dated at Toronto, this 1st day of December, 2010.
”signed by”______________
Alison Renton
Vice-chair