Cort v. Suncor Energy, 2010 HRTO 853

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loma Cort acting as the Estate of Lorne Cort also known as Eric Johns

Applicant

-and-

Suncor Energy Inc. (formerly Petro-Canada), John Chisholm,

John Ferris, Ron Brenneman, Nadia Tataryn and Maureen Cividino

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 19, 2010

Citation: 2010 HRTO 853

Indexed as: Cort v. Suncor Energy

1This is an Application dated November 22, 2009, made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is the Estate Trustee named in the will of her deceased son, Lorne Cort, also known as Eric Johns. The Application alleges discrimination in employment on the grounds of disability, sex, sexual solicitation or advances and sexual orientation. According to the applicant, the deceased starting working at an oil refinery in about 1978. The applicant states that this refinery was purchased by Petro-Canada in about 1985. The deceased continued working for Petro-Canada, although it appears that he went on long term disability starting in about January 2003. The applicant states that the refinery was closed in May 2005. In August 2005, the deceased committed suicide.

3In the Application, the applicant identified the last event as August 23, 2005, the date of her son’s death. The narrative in the Application details allegations of discrimination and harassment during the time of the deceased’s employment and up to the time of his death.

4It appears that the Application is based on two broad categories of incidents. The applicant alleges that the deceased was mocked about his sexual orientation and sexually harassed in the workplace. It appears that the alleged harassment began in the late 1990’s or early 2000’s, when the deceased’s co-workers learned of his sexual orientation. It is alleged that the deceased’s complaints about the sexual harassment were not adequately addressed, subjecting the deceased to further sexual harassment. The applicant states that her son was compelled by the harassment to take medical leave and once he was on medical leave, he was harassed by management to return to work. The applicant also alleges that the respondents failed in their duty to accommodate her son’s disability by offering work in an area where he would not be subjected to a poisoned work environment. It is alleged that the harassment led to the deceased’s inability to continue working, and then to his suicide.

5The second broad area covered by the Application arises out of decisions made by the corporate respondent at the time of the closure of the refinery. The applicant believes that her son’s absence from work due to disability (which was in turn related to his sexual orientation) led to unequal treatment in decisions made about the employment status of employees affected by the refinery closure. It is alleged that at the time of the closure, the corporate respondent took into account excessive absenteeism in ranking employees for the purpose of re-deployment, which adversely affected her son.

6After review of the Application, the Tribunal advised the applicant that it appeared to have been filed more than one year after the last incident of discrimination described in the Application. On this basis, the Tribunal indicated that it appears the Application is outside the Tribunal’s jurisdiction. The Tribunal also stated that the Application may also raise an issue about whether the estate of a deceased individual can initiate an Application under the Code. The applicant was directed to file written submissions responding to these two issues.

7The applicant sent written submissions to the Tribunal, which I have reviewed.

DECISION

8Section 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 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.

9Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

10An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

11As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

12In 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.

13In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high threshold for applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241, Johnson v. Toronto Community Housing Corporation, 2009 HRTO 1949, and Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343. The Tribunal has stated 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. Further, although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights.

14For the purposes of this decision I will assume, without deciding, that an Application may be made by an estate. On my review of the written submissions and the information in the Application, I find that the first category of allegations described above cannot proceed. The applicant’s son had reason to believe he was being harassed contrary to the Code from the late 1990’s or early 2000’s. The applicant was told of these events by her son. The applicant has not explained why her son did not make a complaint to the Ontario Human Rights Commission (“OHRC”) at the time of the harassment, or why she did not bring a complaint on her son’s behalf until this Application was commenced in November 2009.

15The applicant states that she was not aware of other complaints filed against the respondent, and it was “only recently that I discovered some of the truths behind the harassment my son endured.”

16In referring to “other complaints”, the applicant references a number of other matters before the Tribunal raising issues with respect to layoffs resulting from the closure of the corporate respondent’s refinery operations.

17The applicant’s recent knowledge about the other complaints does not provide a reasonable explanation for why no Application was filed within the Code’s one-year time limit with respect to the first category of allegations. The facts that are the basis of these allegations were known at the time they occurred, both to the deceased and to the applicant. There is no reason why these allegations could not have been brought forward earlier, and no reason why the discovery of complaints made by other co-workers was essential to the ability to make a complaint about these allegations. I therefore find that first category of allegations is out of time.

18I am unable to determine, based on the information before me, whether the second category of allegations, arising out of the refinery closure, is also out of time. The applicant appears to suggest that she only learned of the ranking of employees recently. She has not stated specifically when this came to her knowledge. It appears that this information came to light in September 2007, during the investigation by the OHRC of the other complaints, but it is not clear when the applicant was told about it. It is not plain and obvious to me at this stage that the applicant cannot show “good faith” within the meaning of section 34(2) with respect to this second category of allegations, assuming she is entitled as the estate to bring the Application at all.

19The Tribunal will therefore defer deciding the question of whether the second category of allegations is untimely, and will continue to process the Application. As the whole Application may ultimately be found to be untimely, it is also unnecessary at this stage to decide whether the estate is entitled to bring with this Application. Both issues remain to be determined.

20The Tribunal sent the Application to the respondents on March 12. The respondents are directed to file Responses to the Application within 21 days of this Interim Decision, which Responses may address the issues of delay and the ability of the estate to bring this Application. The respondents will be sent all the material filed by the applicant. The Tribunal will consider how to proceed with this Application following receipt of the Responses and Reply, if any.

21The Tribunal notes that the applicant has requested that this matter be consolidated for hearing with the approximately 19 other applications by the deceased’s co-workers. Those other matters have been scheduled for a hearing beginning June 7, 2010. The respondents are directed to respond to this request in their Responses.

22The applicant has given her consent to having one of the applicants in the 19 other matters be her representative for the purpose of this Application. This individual will be added to the contact list for this Application.

23I am not seized of this matter.