HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carla Reis Applicant
-and-
Cintas Corporation Limited, Julie Mekker and Rudy Thebaud Respondents
DECISION
Adjudicator: Faisal Bhabha Date: December 30, 2010 Citation: 2010 HRTO 2544 Indexed as: Reis v. Cintas
APPEARANCES
Carla Reis, Applicant ) John Villella, Representative Cintas Canada Limited and ) Kevin Coon, Counsel Rudy Thebaud, Respondents ) Julie Mekker, Respondent ) Self-represented
1The applicant filed an Application on October 21, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination in employment on the basis of race, ancestry, place of origin, ethnic origin and marital status.
2The respondents requested that the Application be dismissed on the basis that it was filed beyond the one-year time limit prescribed in section 34 of the Code, and on the basis that another proceeding has appropriately dealt with the substance of the Application within the meaning of section 45.1 of the Code. The respondents also challenged the applicant’s representative’s authority to act in respect of this matter, and requested that the personally named respondents be removed from the Application.
3A hearing was held on September 30, 2010 to determine these issues. The applicant, Carla Reis, and the personal respondent, Julie Mekker, gave oral evidence.
4At the outset of the hearing, the applicant’s representative confirmed, to the respondent’s and Tribunal’s satisfaction, that he is a paralegal licensed by the Law Society of Upper Canada. He is therefore authorized to act for the applicant and I need not consider this issue any further.
5Also at the outset of the hearing, the respondents abandoned their request for dismissal pursuant to section 45.1 on the basis that the substance of the Application has been appropriately dealt with elsewhere. Instead, the respondents asked that the Application be deferred pending the completion of an ongoing related complaint under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) and the exhaustion of avenues of appeal or review. Finally, the respondents made submissions in support of a request for the removal of the personal respondents. The applicant opposed both the deferral request and removal of personal respondents.
6For reasons contained below, I conclude that the Application is out of time and that there is no basis to extend the limitation period.
BACKGROUND
7The following facts are based on the materials filed by the parties, the testimony of witnesses, and submissions made by the parties during the hearing.
8The applicant worked for the corporate respondent as a full-time Linen Folder and Bulk Processing Operator. She was terminated for cause on February 27, 2008. The reason given for her termination was that she had bullied and harassed a co-worker, and had ignored a prior disciplinary warning to cease doing so.
9The applicant contested her termination by commencing two legal proceedings within months of her termination. She filed a claim for termination and severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) and a reprisal complaint under the OHSA.
10On October 21, 2009, the applicant filed her Application. Although this was almost 20 months after her termination, she explained that she only became aware of the alleged discriminatory conduct on October 22, 2008 while attending a meeting to resolve her ESA complaint. The information she relies on is an alleged statement by the personal respondent, Ms. Mekker, that the “real reason” the applicant’s employment was terminated was because the applicant insisted on speaking in her native language, Portuguese, despite being told not to.
11The respondent Mekker denied that she made the alleged statements at the ESA meeting. The respondents further argued that, if the alleged discrimination is related to prohibiting the applicant from speaking Portuguese in the workplace, the language issue was raised with the applicant in December 2007, not at the time of her termination in February 2008.
12There is no question that the alleged discriminatory conduct forming the basis of the Application, whether the December 2007 discipline or the February 2008 termination, occurred more than one year prior to the filing of the Application. The applicant does not dispute this and, instead, relies on the argument that the limitation period in the Code should not start running until the affected party “discovers”, or learns, that she has an actionable cause.
13The respondents argued that the applicant should be prevented from relying on the respondent Mekker’s alleged statement as the moment of discovery. They submitted that the applicant’s evidence on this point was not credible, given the surrounding circumstances. They urged me to prefer Ms. Mekker’s recollection of the discussion over the applicant’s.
14The respondents further noted that the applicant had legal representation throughout and commenced other legal proceedings immediately following her termination. They argue that this cannot support a contention of good faith, which is required in order for the Tribunal to extend a limitation period.
Analysis AND DECISION
15The respondents asked for dismissal of the Application. Counsel argued that the applicant is out of time within the meaning of section 34(1)(b) of the Code and asked that I deny a deferred limitation period based on discoverability, and refuse to accept that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, within the meaning of section 34(2).
16Section 34 of the Code provides as follows:
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 release; 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.
17The 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 the circumstances in section 34(2) exist.
18The first question to determine is whether the limitation period should be calculated from the date of the last allegedly discriminatory incident, being February 27, 2008, or October 22, 2008, when the applicant says that she discovered the “real reason” for her termination.
19I am not persuaded by the applicant’s argument with respect to discoverability. If the applicant believed that the corporate respondent’s position with respect to language in the workplace was discriminatory, reason holds that she would have “discovered” that alleged breach at the time she was disciplined in December 2007. It was raised formally and documented in the applicant’s disciplinary record, dated December 6, 2007, which provides the following direction to the applicant: “I expect you to speak English when you are at work, as speaking in another language that everyone in the plant does not speak is inappropriate and can lead to misunderstandings.”
20Although the applicant argued that she did not understand the reason for the discipline in December 2007 and was not given a copy of the record at the time, she admitted on cross-examination that the discipline record was read aloud to her when it was issued, and that she had the opportunity to review it and ask questions before signing it. While she did not have legal representation at the time and may have lacked access to information to confirm her feelings of unfairness, by February 2008, when she was terminated, she had legal representation and pursued multiple options to enforce her statutory rights. A copy of the disciplinary report was produced to her in May 2008 as part of the Labour Relations Board proceedings. She waited another 17 months from that point until filing the Application.
21What the applicant believed she learned in the ESA meeting was not information that assisted her in discovering her potential case under the Code. If anything, it was confirmation of what she already believed. Notwithstanding the fact that the respondent denies the alleged statements were even made, I find that the information relevant to the discrimination claim was already known to the applicant. While she may have believed that the “confession” would bolster her case, it did not lead to her “discovery” of the alleged discrimination. The Tribunal has addressed this issue as follows:
The 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. 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. See Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23.
22As a result, I find that the applicant’s knowledge and awareness of the facts giving rise to the alleged breach of the Code arose initially in December 2007, and again with her termination in February 2008. In bringing her Application nearly 20 months after the alleged discrimination, it was beyond the one-year time limit stipulated in section 34(1).
23The applicant has further neglected to provide a reasonable explanation for her delay. I therefore cannot accept that the delay was incurred in good faith. In her Occupational Health and Safety complaint, she characterized the corporate respondent’s December 2007 disciplinary action (regarding the language protocol) as a “reprisal” for her having raised legitimate health and safety concerns. If she believed that the language protocol was discriminatory, it is reasonable to expect that she would have made this argument and initiated proceedings at the same time.
24It is unnecessary for me to consider the question of prejudice.
25It is also unnecessary for me to consider the respondents’ additional arguments with respect to deferral or the removal of personal respondents.
ORDER
26The Application is dismissed.
Dated at Toronto, this 30th day of December, 2010.
”signed by”__________
Faisal Bhabha
Vice-chair