Maria Leombruni v. Loblaw Companies Limited, 2010 HRTO 639

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Leombruni

Applicant

-and-

Loblaw Companies Limited

Respondent

-and-

United Food and Commercial Workers’ Union Local 1977

Intervenor

DECISION

Adjudicator: Kathleen Martin

Date: March 24, 2010

Citation: 2010 HRTO 639

Indexed as: Leombruni v. Loblaw Companies

APPEARANCES BY

Marie Leombruni, Applicant ) self-represented

Loblaw Companies Limited, ) Zoe King, Counsel

Respondent )

United Food and Commercial )

Workers Union Local 1977, ) Patrick Groom, Counsel

Intervenor )

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) filed on September 10, 2009. The Application alleges discrimination in employment on the basis of disability. The date of the last alleged incident of discrimination identified in the Application is November 13, 2007.

2On October 1, 2009, the Tribunal issued a Notice of Intent to Dismiss the Application to the applicant. The Notice indicated that it appeared the Application was outside of the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination and the Tribunal was not satisfied that the applicant had satisfied the conditions of section 34 of the Code. Submissions were filed and on November 2, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 1842, scheduling a one hour hearing by conference call for the purpose of hearing oral submissions on delay.

3Following the Tribunal’s Interim Decision, the Tribunal received submissions from the applicant and the respondent. In addition, the Tribunal received a Request to Intervene from the applicant’s union on November 24, 2009. .

4A hearing by conference call occurred on March 10, 2010. The Tribunal heard evidence from the applicant and Steve Springall, the applicant’s union representative. In addition, the Tribunal heard submissions from the parties and the union.

5This Decision addresses the question of whether, having regard to the applicant’s delay in filing the Application, the Application can proceed.

THE FACTS

6Most of the facts were agreed to by the parties and the union at the outset of the hearing. I heard brief evidence from the applicant and Mr. Sringall about the handling of a related grievance because the applicant relied on this to explain her delay in filing her Application. While there were some differences in their respective accounts, I do not find them significant for purposes of this Decision.

7The Application arises out of the applicant’s employment in a Zehrs Market grocery store. The respondent is the owner of Zehrs Markets.

8The applicant alleges that the respondent discriminated against her on the basis of a disability. The central issue in the Application pertains to the respondent’s handling of her request for accommodation, and in particular, her request to be relieved of the duty of frying donuts because of a medical condition.

9At the time the accommodation issue arose, the union filed a grievance on the applicant’s behalf alleging a failure to accommodate. The applicant agreed that the issue underlying the grievance is the same as the issue in the Application.

10The grievance was partially resolved on or about November 26, 2007, when the applicant was transferred to another Zehrs Market location where she was not required to perform the duty in question. Following this partial resolution, what remained outstanding in the grievance was the question of a written apology. In her Application the applicant also seeks an admission of liability and compensation.

11The applicant testified that she had sought early advice about the situation underlying the Application from a lawyer in December 2007 and understood there may be a human rights claim, but then relied on her union to address the situation. The applicant stated that she understood her grievance was going to “arbitration” in September 2009, although she agreed that it was clarified that the arbitration was actually an opportunity to discuss the situation with a lawyer for the union. The applicant stated that she found out on August 26, 2009 that the union would be obtaining an opinion from the lawyer and then received other “legal” advice which led her to file the human rights Application.

12Mr. Springall testified that initially the union had decided not to proceed with the applicant’s grievance, but subsequently changed its position when the applicant provided new medical evidence in early 2008. Thereafter, the grievance remained a live issue, while the union attempted to reach a resolution on the apology. Mr. Springall described various meetings where the applicant’s grievance was put on the agenda for consideration, but stated that at no time, was an arbitration date scheduled.

13The applicant’s grievance was addressed in a Committee meeting on September 14, 2009, when the decision was made against going to arbitration. The applicant was aware but did not attend the meeting. The grievance was subsequently settled by the union and the respondent.

DECISION

14Section 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 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.

15Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or if there was a series of incidents, more than a year after the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist; namely that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

16In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25 the Tribunal held as follows:

In my view, where an applicant seeks 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 Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period 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 may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim.... (emphasis added)

17In this Application, the primary reason given for the applicant’s delay is that she “put [her] faith in the union” and it was only when she realized that her union was not taking it forward, that she received additional legal advice and proceeded with an Application at the Tribunal.

18I do not find that the applicant has provided a reasonable explanation for the delay and therefore am not satisfied that the delay in filing the Application was incurred in good faith. First, having regard to the evidence, I have difficulty concluding that the applicant reasonably believed that her grievance was definitely going to arbitration and she only filed her Application when she realized it was not. While the applicant may have misunderstood the status of the grievance (as she suggested in her submissions), she appears to have filed her Application even before the status of her grievance was finally addressed.

19Second, and in any event, the Tribunal has held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. While I can appreciate that there are legitimate reasons for attempting to resolve human rights issues through the grievance process first, I do not find that in the circumstances of this case, it was reasonable to delay making additional independent inquiries and file an application almost 22 months after the date of the alleged incident of discrimination.

20In summary, I do not find that the applicant has met the onus imposed on her to satisfy the Tribunal that the delay in filing this Application was incurred in good faith. Having come to such conclusion, there is no need to address the issue of whether or not the respondent suffered substantial prejudice as a result of the late filing.

21The Application is dismissed.