Donna Van Gent v. Steed & Evans Holding Inc. & Lafarge Canada o/a Nelson Aggregates and George Drew, 2010 HRTO 44

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Van Gent

Applicant

-and-

Steed & Evans Holding Inc. & Lafarge Canada o/a Nelson Aggregates and George Drew

Respondents

DECISION

Adjudicator: Judith Hinchman

Date: January 12, 2010

Citation: 2010 HRTO 44

Indexed as: Van Gent v. Steed & Evans Holding

WRITTEN SUBMISSIONS BY

) Donna Van Gent, Applicant ) Self-represented ) ) Steed & Evans Holding Inc. & Lafarge Canada ) Robert Statton, o/a Nelson Aggregates and George Drew, ) Counsel Respondents )

1The applicant filed a complaint dated February 20, 2006 (the “Complaint”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondents. The applicant abandoned the Complaint and filed this Application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. The applicant alleges discrimination in relation to employment on the basis of sex.

2This Decision deals with the respondents’ request that the Application be dismissed for lack of jurisdiction either on the basis of delay or because there was no employment or contractual relationship between the respondents and the applicant at the time of the alleged incident or at any time. By Interim Decision 2009 HRTO 1632 the Tribunal requested submissions from the parties on the jurisdictional issues and, having reviewed those submissions, dismisses this Application for delay.

Decision

3The alleged discriminatory incident occurred on June 7, 2004. The applicant filed her Complaint on February 20, 2006, one year and seven months after the alleged incident.

4Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. While the orginal complaint was filed when the old section 34 of the Code was in force, the Tribunal has found that the current section 34 provisions are applicable to applications, such as this one, filed under the transition provisions of the Code. See Boncori v. TRW Canada, 2009 HRTO 564, Marchand v. St. Michael’s Hospital, 2009 HRTO 566, Chinatman v. Toronto District School Board, 2009 HRTO 1225. I agree with this approach.

5Under section 34(2) of the Code, an application made more than one year after the alleged incident of discrimination (or the last incident in a series of incidents) may only proceed before the Tribunal where the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:

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.

Good Faith

6As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her rights under the Code in a timely manner.

7The applicant does not allege that she was unaware of her rights under the Code and in fact submits that on the date of the alleged incident, June 7, 2004, she phoned the Commission about her case and explained what happened. She states that the Commission sent her complaint forms that same day. She argues, however, that she then became too ill to deal with the incident at that time.

8By way of further explanation, the applicant relates that during the months prior to June 7, 2004, she had broken up with her boyfriend, had an accident in her truck requiring repairs that kept her from working for two months, and dealt with a dispute regarding whether or not her son could return to work as a summer student. Accepting that these were stressful events, these incidents all predate the June 7 incident and her conversation with the Commission. I am not satisfied these events provide a reasonable explanation for the failure to file the Complaint until February 2006.

9The applicant has submitted documentation from a physician and a psychiatrist to show that she experienced mental health issues after the alleged incident. The first is a medical noted dated October 7, 2005 from her physician which indicates the applicant was “unable to work due to psychological issues – under urgent (illegible).” This note was written more than one year after the incident and thus is not an explanation of why the applicant did not pursue her Code claim within the year.

10The second document is dated August 7, 2006. It records a consultation with a psychiatrist in March 2005 and again in April and May of 2006. Although in March 2005 the doctor entered her into a four to six week Mental Health Day Program in order to determine a diagnosis, the applicant was not consistent in attending the day program and thus no diagnosis was forthcoming from this program. The doctor next saw the applicant in April 2006, which is ten months after the expiry of the one-year period required under the Code s. 34.

11On the day of the alleged incident, the applicant phoned the Commission and explained what she thought had happened. The Commission sent forms for her to complete that would initiate her Complaint. From the materials submitted, there is a period of almost ten months following receipt of those forms that the applicant has not accounted for in her explanation. The medical consult documented in March 2005 while indicating she was then offered an opportunity to be seen for diagnosis and perhaps treatment, does not substantiate that she was too sick at that point to submit the forms. In the circumstances, there is insufficient evidence to explain the applicant’s failure to pursue her Code claim between June 2004 and June 2005, the one-year period following the alleged incident.

12I find that the applicant has not provided a reasonable explanation of why she did not pursue her rights under the Code in a timely fashion. I am thus not satisfied that the applicant’s delay was incurred in good faith.

13For the above reasons, I find that the applicant has not satisfied her burden of demonstrating that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code. Consequently, it is not neccessary to determine whether the respondents have demonstrated substantial prejudice as a result of delay. In light of my conclusions on the delay issue, there is no need to consider the respondents’ other preliminary issue.

ORDER

14The Application is dismissed.