Lutz v. Toronto (City), 2010 HRTO 769

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Lutz

Applicant

-and-

Corporation of the City of Toronto

Respondent

interim DECISION

Adjudicator: Judith Keene

Date: April 7, 2010

Citation: 2010 HRTO 769

Indexed as: Lutz v. Toronto (City)

Appearances by

Jeffrey Lutz, Applicant ) Sharon Sheen, Representative

City of Toronto, Respondent ) Kerri Kitchura, Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 11, 2009, alleging that the respondent discriminated against and harassed him in respect of employment on the grounds of disability, ancestry, and reprisal. Among other things, the applicant alleges that, following his return to work from disability leave in September 2006, the respondent employer harassed him by requiring him to bring a sick note each time he was absent from work due to illness, even for one day.

2The Application indicated that the date of the last event upon which the Application is based was February 6, 2007, approximately two years and three months before the Application was filed. On June 19, 2009, the Tribunal sent the applicant a Notice of Intent to Dismiss. In that Notice, the Tribunal advised the applicant that the Application appeared to be outside of the Tribunal’s jurisdiction because of the delay in filing the Application. The Tribunal directed the applicant to provide his submissions to explain why, in all of the circumstances, the Application was within the Tribunal’s jurisdiction.

3After reviewing the applicant’s submissions, and pursuant to an Interim Decision, (2009 HRTO 1137), the Tribunal delivered a copy of the Application to the respondent so that it might provide its submissions on whether the delay in filing the application was incurred in good faith and whether substantial prejudice will result to anyone affected by the delay within the meaning of section 34(2).

4In Interim Decision 2009 HRTO 1137, the Tribunal found that the circumstances raised by the applicant might be sufficient to satisfy the Tribunal that the delay in filing the Application had been incurred in good faith. However, before determining that issue, the Tribunal directed that the respondent be given an opportunity to make submissions on whether the applicant ought to be permitted to proceed with the application under section 34(2) of the Code. The applicant was directed to submit any medical evidence he might have substantiating that his disability contributed to the delay in filing the Application.

5In his July 16, 2009 response to the Notice, the applicant had submitted that the delay prior to approximately early to mid-2008 was incurred in good faith because, prior to that time, he believed that his trade union was pursuing his human rights in respect of the issues raised in the Application through the grievance procedure. The applicant submitted that he filed a grievance through his trade union on March 23, 2007 which alleged, among other things, that the respondent employer was harassing him on the basis of an ongoing illness by constantly requiring him to provide doctors’ notes to substantiate absences of one or two days’ duration. He submitted that he discovered in early to mid-2008 that his trade union was not in fact pursuing his human rights claim and was not willing to help him with respect to the harassment issue until the applicant returned to work.

6The applicant had also submitted that his disability contributed to the delay in filing the Application, and that delay incurred because of his disability was incurred “in good faith” within the meaning of the Code. The applicant submitted that he has seizures which are exacerbated by stress and that he has to avoid stress as a result. He submitted that completing the Application was stressful for him and that, to minimize that stress, he could only work on his Application for a period of time before having to put it aside. The applicant was off work due to disability for the entire period of the delay.

7In response to Interim Decision 2009 HRTO 1137, the respondent submitted that the delay in filing the Application was not incurred in good faith and that the delay in filing the Application could not be attributed to the applicant’s disability. Among other things, the respondent submitted that, during the period in question, the applicant’s disability did not prevent him from pursuing other statutory and contractual rights. The respondent also submitted that it would suffer substantial prejudice as a result of the delay if the Application were to proceed.

8In its submissions on the delay issue, the respondent submitted that the facts and issues raised in the Application are part of a grievance which is still outstanding. The applicant, in his Application and in his submissions to the Tribunal, acknowledged that his March 2007 grievance relates to the same facts and issues as the Application. However, he stated that his trade union advised him that it would not deal with his grievance until he returned to work. On September 25, 2009, the respondent wrote to the Tribunal to advise that the applicant returned to work with the respondent in September 2009.

9At the hearing, both parties confirmed that the applicant got his driver’s license back in September 2009 and was back at work in September 2009. Mr Passoa testified that the applicant has had at least nine (possibly eleven) health-related absences since his return. As of the date of the hearing, the applicant is no longer being asked to produce a note from his doctor for absences of three days or less.

10These facts raised a question as to whether the applicant’s March 2007 grievance is being continued, and, if so, whether this Application ought to be deferred pending completion of the grievance and arbitration process.

11Pursuant to a further Interim Decision, 2009 HRTO 1714, the Tribunal convened a half-day oral hearing at which the parties could present evidence and make submissions on the issue of timeliness under sections 34(1) and (2) of the Code and on the issue of whether the Tribunal ought to defer the Application pending the completion of the grievance and arbitration process in respect of the applicant’s March 2007 grievance.

12This Interim Decision deals with the evidence adduced and issues raised at the hearing. The Tribunal heard evidence from the applicant, his wife, Sharon Sheen, and from Lino Pessoa and Garth Knox, witnesses for the respondent.

ANALYSIS

Should the Application be dismissed for delay?

13The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in 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:

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.

14An application may be accepted under subsection (2) after the expiry of the time limit 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

15In legal contexts other than the Code, the Ontario courts have had occasion to interpret the phrase “delay that has been incurred in good faith”. Some of these decisions were summarized by the Tribunal in the earlier Interim decision 2009 HRTO 1137, at para 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer 2002 CanLII 44920 (ON C.A.), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

16In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

17The term “reasonable” has both objective and subjective elements, both of which must be considered within the context of the Code. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, (“Miller”) briefly discusses both. In regard to the objective element, the Tribunal stated:

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.

18The Tribunal in Miller also briefly alluded to the subjective element of “reasonable” noting that, while

the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay…there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). (at para. 25)

19In this case, it appears to me that the applicant has established that the nature of his disability is closely connected to his failure to file his Application on time. The relevant period in respect of the evidence of “good faith” is February 7, 2007 to May 11, 2009.

20In support of his submission that his disability contributed to the delay in filing the Application, the applicant had already submitted a brief, handwritten doctor’s note dated August 5, 2009, which indicates that the applicant has multiple medical issues and that he has difficulty focusing due to poor concentration and sleep. To this, the applicant added a two-page note, dated January 27, 2010, on the letterhead of his physician, Dr. Balkissoon, indicating that :

this patient is allowed to return to work with the recommendation that he…work in an environment which will avoid unnecessary stress and confrontations which could act as a trigger for seizures…At present this patient's symptoms are stable and any new stress could probably cause a deterioration in his medical condition, including seizures.

21The applicant and his wife, Ms Sheen, also gave evidence concerning the way in which he was affected by his disability during the relevant period. This evidence was not contested by the respondent.

22The applicant has epilepsy, a disorder that clearly fits the definition of “disability” in s. 10 of the Code. The applicant’s epilepsy was apparently diagnosed in 2004. It worsened significantly in 2007. On March 20, 2007, the applicant had a seizure while driving home from work, after which his driver’s license was suspended and he left work on disability leave.

23The applicant had great difficulty in responding to questions that involved the period February 7, 2007 to May 11, 2009 - he remembered very little by date although he could describe some particular incidents, such as the aftermath of his seizure while driving. It was only the aftermath that he recalled; he testified that he has no memory of the seizures themselves. It appears that his memory is very poor. Although he showed a clear willingness to answer, he had repeated difficulty in focusing on questions and responding to what had been asked. For example, in response to a question about events in 2008, he began to discuss his seizure while driving, which had occurred in 2007.

24Ms Sheen testified that, except for a medical appointment in December 2009, she had attended all medical appointments with the applicant. She indicated that, from early 2007 until mid-2009, the applicant’s doctors were engaged in an effort to find the right medications, and the right dosages, to control the applicant’s seizures. Medication changes occurred as frequently as every three months.

25The applicant’s doctors requested that he keep track of seizures. Ms Sheen testified that she is the one who did this - she marked the occurrence of seizures, as well as medical appointments and blood tests, on a calendar. Ms Sheen’s reports for the doctors were necessarily estimates. The applicant could not remember when he had seizures. Ms Sheen noted the seizures she witnessed during the evening and on weekends; she said that she had witnessed two to five seizures in a single day or evening on several occasions in 2007. Ms Sheen works during the weekdays. Ms Sheen testified that, because the applicant fairly consistently reported “not feeling well” after she had witnessed a seizure, she assumed that when he told her when she came home that he had not felt well, he had probably had one or more seizures that day.

26The applicant had frequent medical appointments from mid-March of 2007, for his seizures and for associated sleep problems. During 2008, he was placed on a “seizure moderating program”.

27It appears that the applicant’s seizures were reduced to none, as far as he and Ms Sheen could determine, by September of 2008 - Ms Sheen indicated that the applicant got his driver’s license back in September 2009, and that the requirement for its return was that he be seizure-free for a year.

28While the seizures were eventually reduced, the applicant was required to continue on medication to avoid recurrence, and he remains on certain medications, about which he gave evidence. In response to a question as to how these medications affect him, the applicant said that they have no effect other than controlling his seizures. However, Ms Sheen testified that the medications produce nausea and loss of appetite, and make it hard for the applicant to focus. They also appear to Ms Sheen to cause forgetfulness affecting both recent and remote memory.

29Ms Sheen was a credible witness and I have no reason to doubt her assessment. Having seen the applicant struggling to deal with questions at the hearing, and taking into account Ms Sheen’s testimony, I conclude that the medications may contribute to the applicant’s difficulty with cognition and memory.

30The applicant filed a grievance in March 2007. Sometime after that, he also filed a claim for Long-Term Disability. He filed a claim under the Workers’ Safety and Insurance Act, although he could not remember the date; it may have been May 2008. In addition, he filed this Application in May 2009. However, in cross-examination both he and Ms Sheen were clear that “all the paperwork” in respect of these matters was in fact done by Ms Sheen, as the applicant was not capable of dealing with the requirements of filing these claims.

31The respondent relied on several decisions of this Tribunal, including Corrigan, supra; Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143, Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 and Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110. In these decisions, disability was raised as part of the reason for a delay in filing an Application, and the Tribunal noted the applicant’s ability to undertake other legal proceedings despite his or her disability. In none of these decisions was there such clear evidence as there is in this case of disability that specifically hampers or prevents an individual from making the inquiries and taking the actions needed to undertake a legal proceeding. In fact, there is uncontradicted evidence that any legal proceedings in which the applicant was involved during the period in question, including this Application, were undertaken on his behalf by his wife, because the combined effect of his disability and his medications had rendered him unable to undertake them.

32In the circumstances of this case, I find that the applicant has met the “good faith” test.

Prejudice

33The establishment of good faith is not sufficient to meet the requirements of s. 34(2); ordinarily, I would be required to deal with evidence relating to prejudice to the respondent. In this case the applicant asserted, and at the hearing the respondent very fairly agreed, that the respondent was not prejudiced in dealing with this Application should it go forward. I agree with this position.

Should the Tribunal defer to the grievance process?

34The applicant had assumed that the union would deal with his March 2007 grievance. In his Application, he alleged that the Union had discontinued his grievance after an unsuccessful attempt to get him to sign Minutes of Settlement. Garth Knox, who is employed by the respondent as Senior Labour Relations Consultant dealing with day-to-day labour relations matters, testified that the grievance has not been withdrawn. However, he also testified that no action has been taken on the grievance.

35Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

36Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

37The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

38Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

39While the subject matters of the grievance and the Application may overlap, the material before me suggests that it is unlikely that the grievance and the Application will be heard concurrently. The status of the grievance is such that no hearing dates have been set over the three years since it was filed.

40In the circumstances, I am not satisfied that it would be appropriate to defer the Application. The respondents’ request to defer the Application pending the determination of the grievance is dismissed.

41The Union must advise the Tribunal and the parties within two weeks of the date of this Interim Decision whether it intends to seek leave to intervene in the Application.

42The respondents must file their full Response to the Application by April 27, 2010. The respondents need not duplicate any materials already filed with the Tribunal and sent to the applicant.

43The applicant has had some difficulty in meeting the Tribunal’s procedural requirements in respect of documentation, calling witnesses and submitting evidence. The applicant is advised to review may wish to review the Applicant’s Guide, available on the Tribunal’s website (at http://www.hrto.ca/NEW/home.asp) or from the Registrar’s office. Pages 2-3 of the Guide set out sources of assistance that may be available to him.

44I am not seized of this matter.