Andrzej Orlowski v. Apotex Inc., 2010 HRTO 527

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrzej Orlowski

Applicant

-and-

Apotex Inc.

Respondent

Decision

Adjudicator: Caroline Rowan

Date: March 11, 2010

Citation: 2010 HRTO 527

Indexed as: Orlowski v. Apotex

Written SUBMIssions BY

Andrzej Orlowski, Applicant ) On his own behalf

Apotex Inc., Respondent ) Carl Peterson, Counsel

1This is an Application filed pursuant to section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on April 22, 2009. Mr. Andrzej Orlowski filed the underlying human rights complaint with the Ontario Human Rights Commission (the “Commission”) on January 21, 2008.

2In his Application, the applicant alleges that the respondent, Apotex Inc. (“Apotex”), discriminated against him in employment contrary to section 5 of the Code on the grounds of age, disability, ethnic origin, place of origin. He also alleges a breach of settlement and that he had been subject to a reprisal by the respondent, Apotex. The applicant’s complaint against the respondent arises out of his employment with Apotex and/or its predecessor over a period of approximately six and a half years ending on or about January 7, 2004.

3In his complaint, the applicant contends that he was subject to discriminatory treatment during the course of his employment by various individuals employed at Apotex (including individuals he refers to as “Taliban employees”), because he raised safety, product quality, and conflict of interest issues in the workplace. His allegations include that he was exposed to active products as punishment for raising these issues and that his employment with Apotex was terminated on January 7, 2004 for the same reason. He also alleges that he was tortured psychologically and picked on during the course of his employment due to his ethnic origin and language accent. More specifically, the applicant provides particulars of his claim in that regard in his submissions filed with the Tribunal, in which he contends that he was attacked physically and verbally by Taliban employees of Apotex due to the fact that he was the only white non-Taliban on shift and because he questions his health and safety.

4In its response to the Application, the respondent requests that the Application be dismissed summarily for any one of the following reasons:

• The Application is covered by a full and final signed Release between the parties in accordance with Rule 13.3 of the Tribunal’s Rules of Practice;
• The applicant’s extreme delay of approximately four (4) years in filing the underlying human rights complaint with the Commission;
• The allegations, even if accepted as true, do not disclose a prima facie case of a breach of the Code.

5A hearing was originally scheduled in this matter to address the preliminary issues raised by the respondent. However, at the request of the applicant, and with the consent of the respondent, the hearing was cancelled since both parties waived their right to make oral submissions and agreed that the Tribunal should deal with the preliminary issues on the basis of the written submissions filed.

6By way of background to the preliminary issues, I note that the alleged events giving rise to the applicant’s complaint of discrimination in employment date back to the six and a half year period of his employment with Apotex and/or its predecessor and the termination of his employment on January 7, 2004.

7There is no dispute that, at the time of his discharge from employment, the applicant was offered and accepted a severance package in exchange for a full and final release. Even though the applicant acknowledges having signed the release in question, he contends that Apotex breached/invalidated the release by, among other things, ruining his health and preventing him from obtaining alternate work. He also contends that he was disabled and under financial duress at the time he signed the release.

8It appears from a review of the applicant’s submissions that he claims to have become disabled as a result of his alleged exposure over the six and a half year period of his employment at Apotex to dangerous substances used and/or produced by his former employer. These allegations are also the subject matter of a pending Workplace Safety & Insurance Board (“WSIB”) proceeding and were the subject of a health and safety reprisal complaint filed on July 4, 2006 with the Ontario Labour Relations Board (“OLRB”) under section 50 of the Occupational Health and Safety Act (“OHSA”). The OHSA application was dismissed by the OLRB on March 13, 2007 on the ground of the applicant’s excessive delay in filing it.

Decision

9Having carefully reviewed the written submissions and supporting documents filed by the parties in respect of the preliminary issues, and for the reasons that follow, I am satisfied that the Application should be dismissed due to the applicant’s excessive delay. I am satisfied that the events giving rise to the applicant’s complaint of discrimination in employment occurred in excess of four years before the applicant’s complaint was filed with the Commission and that the applicant has not provided a reasonable explanation for such a lengthy period of delay and as such that the delay was not incurred in good faith.

10In the circumstances, it is unnecessary to address the other preliminary issues raised by the respondent.

Delay

11The alleged discrimination in employment allegedly occurred during the course of the applicant’s six and a half years of employment with Apotex and culminated in his termination in January 2004. His human rights complaint was not however filed with the Commission until approximately four years later.

12The applicant contends that, after the termination of his employment by Apotex, he contacted the Commission in 2004. According to the applicant, Commission staff referred him to other government agencies such as the WSIB and the OLRB. He also contacted the OLRB and many lawyers. He also notes that he did not have a knowledgeable representative to assist him, such as any union representation.

13The applicant explains in his submissions that the reason he did not file his human rights complaint in 2004 or 2005 was both because he was sick and under the influence as a result of the adverse effects of psychiatric/antidepressant and narcotics and because he relied on the guidance from the Commission and other government agencies concerning the proper avenue to proceed with his complaint against Apotex.

14The respondent contends that it is prejudiced by the four year delay in this case in that memories have faded, documents such as notes have no been maintained and there are a number of potential witnesses that are no longer with Apotex. In the circumstances, the respondent submits that it is prejudiced in its ability to mount a defence to the Application at this point in time.

15Section 34 of the Code permits a person who believes that any of his or her rights under the Code have been infringed to make an application to the Tribunal alleging an infringement within one year after the incident to which the application relates. Even though the applicant’s original complaint to the Commission 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.

16An application alleging an infringement of a person’s rights under Part I of the Code must therefore generally be made within a one year period after the alleged discriminatory incident (or after the last alleged discriminatory incident if there is a series of incidents). Section 34(2) of the Code however permits a person to make an application alleging an infringement of the Code more than one year after the alleged incident took place (or after the last incident if there was a series of incidents) only if 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. The relevant provisions of section 34 of the Code provide 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 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.

17In the present case, the alleged discrimination in employment to which the application relates occurred at unspecified times during the course of the applicant’s six and a half years of employment with Apotex which ended in January 2004. The applicant also alleges that the termination of his employment with Apotex in January 2004 contravened the Code. The applicant’s human rights complaint was not however filed with the Commission until approximately four years after that last alleged incident of discrimination in employment contrary to section 5 of the Code.

Good Faith

18In addressing the timeliness issue, the first question to be determined is whether the applicant’s delay of approximately four years in filing his complaint with the Commission was incurred in good faith. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, in order to find that a delay in pursuing one’s complaint was incurred in good faith, the applicant must provide a reasonable explanation for why he or she did not pursue his or her rights under the Code in a timely manner.

19In the present case, the applicant explains his delay by noting that, after the termination of his employment by Apotex, he contacted the Commission in 2004. He also indicates that he contacted the OLRB and many lawyers in the period after the termination of his employment. He states that Commission staff referred him to other government agencies, such as the WSIB and the OLRB. The applicant explains that the reason he did not file his human rights complaint in 2004 and 2005 was both because he was sick and “under the influence” as a result of the adverse effects of psychiatric/antidepressant and narcotics and because he relied on the guidance from the Commission and other government agencies to select the proper avenue to proceed with his complaint against Apotex. He also notes that he did not have a knowledgeable representative to assist him, such as a union representative.

20Given that much of what the applicant complains about in his human rights complaint concerns reprisals for raising health and safety issues and also concerns having become disabled as a result of his exposure to chemicals at work, it is not surprising that Commission staff may have provided the applicant with information concerning these other agencies. However, the mere fact that the applicant was alerted to these other possible avenues of recourse does not adequately explain such a lengthy delay in pursuing his discrimination complaint against Apotex.

21It is apparent from the applicant’s submissions that he was aware of the process for filing a human rights complaint at the Commission back in 2004, shortly after his employment with Apotex was terminated. It is also apparent that he knew that his discrimination complaint was not going to be addressed at the OLRB since he explains that he did not include his allegations of discrimination in his OLRB application because the OLRB had advised him that those issues were not within its jurisdiction.

22The applicant therefore knew in July 2006, at the time he filed his application at the OLRB, that his human rights issues would not be addressed by that body. He nonetheless waited a further year and a half to file his human rights complaint at the Commission.

23The applicant’s alternate explanation for his delay in pursuing his human rights complaint at the Commission is that he was too disabled to file his complaint in the period after the termination of his employment. He refers in particular to withdrawal symptoms he experienced apparently from the fact that he was no longer exposed to the various drugs produced by Apotex, to which he claims to have been exposed during the course of his employment.

24In support of his position that he was suffering from various disabling conditions, the applicant submitted a number of letters from physicians which refer to the applicant’s various medical conditions.

25A review of the medical certificates confirms that the applicant has a number of medical issues. However, none of the medical certificates on which the applicant relies indicates that his medical conditions prevented him from being able to file a human rights complaint with the Commission in the period after the termination of his employment in January 2004. There is therefore insufficient evidence before the Tribunal on which to conclude that the applicant had medical restrictions which prevented him from pursuing his human rights claim in a timely way.

26It is also apparent from the material filed by the applicant that he was able to file a number of other applications with other government agencies concerning the same events which gave rise to his human rights complaint years before filing the present Application. For example, as noted, he filed a health and safety reprisal complaint in July 2006 and yet waited another year and a half before filing his human rights complaint at the Commission.

27In all of the circumstances, I am not persuaded that the applicant has provided a reasonable explanation for his lengthy delay of approximately four years since the termination of his employment with Apotex before filing the present complaint alleging discrimination in employment. I therefore find that the applicant has not satisfied his burden of demonstrating that the delay in filing this application was “incurred in good faith” as required under section 34(2) of the Code.

28In the circumstances, it is unnecessary to determine whether the respondent has demonstrated prejudice as a result of the delay. It is also unnecessary to address the other preliminary issues raised by the respondent.

Order

29This Application is dismissed for delay.