HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Kelly
Applicant
-and-
CultureLink Settlement Services and Canadian Auto Workers Union, Local 40
Respondents
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Kelly v. CultureLink Settlement Services
Appearances by
John Liam Kelly, Applicant ) Bruce Best, Counsel
CultureLink Settlement Services, Respondent ) James Fyshe, Counsel
Canadian Auto Workers Union, ) David Amow, Representative
Local 40, Respondent )
1This is an Interim Decision made in respect of an Application filed on March 16, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment by the respondents on the basis of disability. The applicant alleges that CultureLink Settlement Services (“the employer”) breached the Code in failing to ensure that he received forms in a timely fashion for an application for long-term disability benefits, and in terminating his employment while he was on disability-related leave after he had temporarily vacated a bargaining unit position for a secondment to a non-bargaining unit position.
2The Application also alleges discrimination on the basis of disability in respect of the applicant’s dealings with Canadian Auto Workers Union, Local 40 (“the Union”) after he received notice that his employment had been terminated. That part of the Application that makes allegations against the Union was filed within the time limit imposed by the Code.
3The Union filed a Request for an Order During Proceedings (“RFOP”) asking for dismissal of the Application on the basis that no prima facie breach of the Code had been established as against the Union. After hearing submissions in a teleconference held on March 1, 2010, I dismissed the Union’s Request: see 2010 HRTO 508 (“the first Interim Decision”).
4A review of the documents filed in this case reveals that the last act by the employer that allegedly breached the Code appears to have been July 5, 2007, with notice to the applicant on July 9, 2007. While the applicant's response to the Union's RFOP argued that the Application was timely, with an argument under section 34(2) of the Code in the alternative, the argument as to timeliness was not pursued at the hearing. On this understanding, the Application has been filed slightly over eight months past the time limit set out in s. 34(1)(a) of the Code.
5The employer filed an RFOP asking that the Application be dismissed, as against the employer, for delay. The employer also requested an adjournment, which was denied, 2010 HRTO 634 (“the second Interim Decision”). A hearing was held on the question of whether the Application should be dismissed for delay. This Interim Decision, the third in this matter, deals with that issue.
Preliminary evidentiary issue
6The employer raised a preliminary objection to the admission of evidence by the applicant’s physicians. I ruled that the medical evidence would be admitted, subject to argument about weight. The following are the details of argument, and my reasoning.
7The employer’s RFOP was filed on November 19, 2009. On December 3, 2009, the applicant’s counsel filed a Response to the employer’s RFOP. This material includes a full description of the applicant's medical condition during the relevant time, and an outline as to how that condition allegedly affected the applicant's ability to undertake legal proceedings. Appended to the reply was a six-page medical report dated November 13, 2009 from the applicant’s physician, Dr Anne Mildon.
8Counsel for the employer sent a letter dated December 17, 2009 to the Tribunal, acknowledging receipt of the applicant’s reply to the employer’s RFOP and the medical report. The letter indicates that counsel had requested that the applicant provide Dr Mildon’s clinical notes and records, states that “we do not wish this matter to be heard until such documents have been delivered to us”, and also states that the respondent was “not, at this time, prepared to accept the doctor’s report without having the opportunity for cross-examination”. No Request for an Order was made in respect of these documents.
9The applicant’s list of documents, list of witnesses and witness statements were served and filed on February 5, 2010, in compliance with Rules 16 and 17 of the Tribunal’s Rules of Procedure. Neither of the respondents has complied with Rules 16 and 17, although the employer was permitted to submit a witness statement at the March 24, 2010 hearing that gave rise to this Interim Decision.
10On March 1, 2010, the conference call that gave rise to the first Interim Decision was held to deal with preliminary issues in this matter. During the conference call, the parties agreed that the medical evidence of the applicant might be such that the employer’s position as to the delay might change. As noted in the first Interim Decision, “[t]o this end, the applicant will be making efforts to ensure that the anticipated medical evidence is forwarded to the employer as soon as possible before the hearing dates”. See 2010 HRTO 508 at para. 8.
11Pursuant to the agreement between counsel noted in the first Interim Decision, the applicant’s counsel served the employer on March 16, 2010, with another medical report from a specialist seen by the applicant, Dr Atilla Turgay. However, he was unable to arrange for delivery of the notes of Dr Mildon, who had apparently been ill. Those notes were delivered to counsel for the respondent, along with an updated version of Dr Mildon’s November 13, 2009 report, on March 23, the day before the hearing that gave rise to this Interim Decision.
12On March 19, 2010, the Friday before the first scheduled hearing date (March 23, 2010), counsel for the employer telephoned the Tribunal, leaving a voicemail in which he requested an adjournment. There followed a series of e-mails between the Registrar’s Office and counsel for the applicant and for the employer, with copies to the Union, dealing with an assertion by counsel for the respondent that “it was clearly understood that we would not be proceeding with the preliminary objection without receiving the medical information”, and the objection by counsel for the applicant to the request for adjournment.
13Counsel for the employer had failed to comply with the Tribunal’s adjournment Policy or Rules of Procedure in making his last-minute request for adjournment. However, as a courtesy, I agreed to hear his request for adjournment by teleconference on March 23, 2010, the first day scheduled for the hearing. I declined the adjournment in a second Interim Decision, 2010 HRTO 634, subject to arguments to be raised at the hearing the next day. With the consent of counsel for the applicant, I waived the Rules in order to permit counsel for the employer to produce witness will-say statements according to his Rule 17.2 obligations on the morning of March 24, 2010.
14As noted above, Dr Mildon’s notes were delivered to counsel for the respondent, along with an updated version of Dr Mildon’s November 13, 2009 report, on March 23, the day before the hearing that gave rise to this Interim Decision.
15Dr Mildon was scheduled to appear as a witness for the applicant. The applicant had not intended to call Dr Turgay, but his counsel indicated that Dr Turgay would be available by teleconference should the respondent wish to cross-examine on the contents of Dr Turgay’s report.
16The employer’s adjournment request had been based on an assertion that the employer has a right to disclosure of any notes that each doctor may have used to write his or her report, before cross-examining these witnesses. Counsel raised this argument again in making a preliminary motion at the hearing that I exclude the evidence of both doctors.
17Counsel for the employer cited section 52 of the Evidence Act, R.S.O. 1990, c. E.23, as amended, in support of his position that he had a right to review the notes prior to cross-examination.
18The Code provides the Tribunal considerable discretion in the conduct of a hearing:
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
42 (1) The provisions of the Statutory Powers Procedure Act apply to a proceeding before the Tribunal unless they conflict with a provision of this Act, the regulations or the Tribunal rules.
(2) Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail over the provisions of that Act with which they conflict.
19The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), provides as follows:
15.(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
(2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceeding arises or any other statute.
(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.
20Section 32 of the SPPA provides that
Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.
21Since section 15(1) of the SPPA permits the admission of any relevant evidence and since the Evidence Act does not state that it (the Evidence Act) applies despite anything in the SPPA, it is arguable that that, in cases of conflict, the SPPA prevails over the Evidence Act. In Hogan (No. 2) (2003), 2003 HRTO 16, 47 C.H.R.R. D/426 at para. 152, the dissenting member of a 3-member panel noted briefly that the Evidence Act was not binding on the Tribunal.
22Having said the above, it is not clear that a conflict with the Evidence Act exists in this case. It is quite clear that section 52 deals only with the admissibility in evidence of medical reports. Subsection 52(3) provides that all parties have a right to “a copy of the report together with any other report of the practitioner that relates to the action”, but neither subsection 52(3) nor any other provision of the Evidence Act addresses notes upon which a report may be based.
23I agree that notes used by a doctor in drafting a medical report may be “arguably relevant” to that report. However, Rule 16 qualifies the phrase “arguably relevant” with the phrase “in [a party’s] possession”. Dr Mildon’s notes were not in the possession of the applicant until they were delivered to the applicant. Pursuant to an agreement between counsel that a request should be made, the notes were eventually delivered, but were not in the applicant’s possession until the day before the hearing. They were forwarded to the respondent that day.
24Section 40 of the Code states that the “Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications”. The Tribunal’s Rules of Procedure echo these considerations (Rule 1). This is a preliminary matter; the merits have not yet been reached.
25In the course of this Application, I have allowed the parties considerable latitude in respect of non-compliance with the Rules. While the applicant was later with disclosure of the medical reports than contemplated under Rule 16, the respondent’s failure to comply with Rules 16 and 17.2 in respect of production of witness statements and at least one document was accommodated.
26The employer has had the report of Dr Mildon for almost 3½ months, and has had ample opportunity to file a Request for an Order in respect of the notes. The notes were delivered the day before the hearing. Dr Mildon gave evidence at the hearing. Counsel for the employer cross-examined Dr Mildon after she had given her evidence in chief, using her reports and notes.
27Dr Turgay’s report was very brief. It added little to the evidence given by Dr Mildon, and counsel for the employer referred to it in questioning Dr Mildon. During the hearing, counsel for the respondent declined to cross-examine Dr Turgay because he had not received Dr Turgay’s notes.
28The respondent employer received Dr Mildon’s notes, albeit very late, and used them to cross-examine her. The employer has not provided any argument, except a credibility argument addressed below, why the notes and the report should not be given weight save for the timing of their disclosure. The employer referred to Dr Turgay’s report while cross-examining Dr Mildon, although counsel declined the opportunity to cross-examine Dr Turgay. In the event, the decision I have made below relies very little on either of the reports; Dr Mildon’s testimony covered the relevant issues. In the circumstances, I am not convinced that denial of an adjournment, or my decision to accept Dr Turgay’s or Dr Mildon’s report in evidence, results in unfairness to the respondent employer.
SHOULD THE APPLICATION BE DISMISSED FOR DELAY?
29The 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.
EVIDENCE
30In dealing with this Request to dismiss, I heard evidence from Ibrahim Absiye, the Executive Director of the respondent employer, CultureLink Settlement Services; John Kelly, the applicant; and his physician, Dr Anne Mildon.
31Both respondents were represented at the hearing. I gave the Union’s representative the opportunity to cross-examine, but in view of the fact that the hearing was to deal with the employer’s RFOP, the Union’s representative asked few questions.
The applicant’s evidence relevant to “good faith”
32The medical evidence given by the applicant and Dr Mildon indicates that the applicant has suffered from Attention Deficit Hyperactivity Disorder (“ADHD”) and Generalised Anxiety Disorder (“GAD”) since 1991. In early 2007, he was diagnosed with Chronic Fatigue and Immune Dysfunction Syndrome (“CFIDS”), depression, fibromyalgia and myositis (painful muscles accompanied by gastric symptoms). In addition, Dr Milton testified that during the relevant time, the applicant suffered from asthma, allergies which resulted in severe anaphylactoid reactions, acute episodes of kidney infection, and a number of viral illnesses.
33The applicant testified that, during the period of his medical leave in 2006, he was suffering from “mental health issues”. He described himself as agoraphobic; some days he could not get out of bed or leave the house. He was easily upset to the point of tears, and unable to do ordinary things that he normally could do such as answering the phone and shopping for groceries. He failed to pay his bills, did not communicate with people and isolated himself. He found it difficult to make decisions. He was unsure whether he was suffering from depression or whether it was further symptoms related to his ADHD. He developed a serious throat infection, and “kept getting sick”. He frequently felt paralysed by anxiety. He had insomnia and poor sleep, only getting a few hours of sleep a night.
34The applicant joined support groups for adults with ADHD and chronic fatigue. He started seeing Dr Mildon in February of 2007 and Dr Turgay, a psychiatrist, in March of 2007.
35The applicant testified that he had trials of various medications to control his symptoms: “I had to build slowly because there were concerns about my liver”. He also received intravenous supplements of vitamins and minerals, because he was not absorbing nutrients well.
36At some time after the termination of his employment, the applicant applied for social assistance. He was on an allowance under the Ontario Works Act (“OW”) until February of 2009. While OW provides some drug coverage, it “was a struggle to have my medications approved”. OW did not cover the most effective medication for his symptoms, which cost almost $400 per month.
37In November of 2007, the applicant obtained the assistance of pro bono counsel through the chronic fatigue support group. It was this lawyer who wrote the letter to the employer of March 27, 2008 seeking damages for wrongful dismissal and reinstatement in employment. The applicant testified that it was very difficult for him to stay focused enough to give the lawyer the information she needed. The lawyer was “patient, interpreted for me, guided me through a lot of what should have been easy. I felt quite guilty during the process, because I couldn't get on top of it. In the past, I'd advised clients on how to be organised, but could not do this for myself”. Writing the letter constituted the pro bono service; there was no further assistance from the lawyer: “they needed a retainer. I was on OW”.
38When the applicant received the April 2008 response from the employer, “it devastated me”. He felt unable to pursue any further action on his own. He testified that he was sick often during that period, including an attack of shingles, and could not focus on anything he found stressful.
39The applicant testified that some friends of his who are union organisers advised him to contact the union. He stated that after he received the termination letter, it took several tries until he was able to bring his symptoms of anxiety sufficiently under control to be able to contact the union. He contacted the union and had several interchanges with them in regard to filing a grievance.
40In September of 2008, the applicant appealed a refusal of an application for benefits under the Ontario Disability Support Act (“ODS”). He stated that his doctor had found a lawyer who would deal with the appeal and he had “lots of assistance from his worker at OW”. However, he found the process, which eventually resulted in a settlement and the granting of benefits, very stressful. However, the Union has confirmed that no grievance was filed.
41The applicant described his treatment as “going well” in early 2008, but also stated that his physical symptoms were “a constant battle”, his anxiety level was still high, and his physical and mental condition was subject to frequent brief remissions and exacerbations (a “roller coaster”) through 2008 and 2009. When asked to summarise when he felt better and when he felt worse during this period, the applicant replied, with some difficulty, that probably the worst period of time with in 2007 and the best in late 2009. He described 2008 and early 2009 as a struggle with his medical conditions, and stated that while he still does not feel that his health condition is stable, he has learned more about how to cope: “my approach is more stable”.
42Counsel for the respondent questioned the applicant concerning a notation in Dr Turgay’s report about the applicant “providing leadership in adult ADHD”. The applicant stated that Dr Kirby was referring to providing leadership within his ADHD support group. In 2008, the applicant did some volunteer work for one of his support groups, participating in a conference. In the summer of 2008, he also applied unsuccessfully to be a “patient” member of a provincial Committee that evaluated drugs not covered by provincial health benefits programs. He stated that he applied because of his difficulty in getting his own medications covered by social assistance. He was not sure whether he could have done it, but someone in one of his support groups had told them that the Committee accommodated disability and only met once a month. He testified that he could not have done these activities without support, and that it helped him deal with his health problems.
43In cross-examination, the applicant was asked about an enquiry he had made of his employer in the summer of 2007 about returning to work. The applicant stated that when he sent the e-mail he had wanted to get back to the job and hoped that he was getting stronger, but by the autumn of 2007, he realised that he was not capable of returning to work.
44In late 2008, the applicant approached ARCH, a community legal clinic serving people with disabilities. Staff at ARCH recommended that he contact the Human Rights Legal Support Centre. The applicant said that he phoned the Centre in December, but he “still found it difficult to use the phone” and “it was not clear that the Centre could represent” him. Eventually, a staff person at ARCH “intervened to get the Human Rights Legal Support Centre to see me”, and he got an appointment on February 23, 2009. Counsel at the Centre filed this Application.
The evidence of the applicant’s doctors relevant to “good faith”
45The assessment by an individual of how he or she may have been affected by disability is of course a subjective one. Further, the disability itself may affect the individual’s self-assessment. Objective assessment by health professionals can be extremely helpful in getting the full picture.
46Dr Atilla Turgay’s brief report, dated March 16, 2010, confirms that the applicant first sought treatment in March 2007 to address anxiety symptoms and attention problems, gives a general review of the applicant’s symptoms and treatment, and confirms a “diagnostic impression” of Generalised Anxiety Disorder and Attention Deficit Hyperactivity Disorder. The report of Dr Turgay indicates that the applicant has been on various anti-anxiety and anti-ADHD medications over the past 2½ years. The trial of one medication in 2007 was “unsuccessful in alleviating his symptoms”, but he is “responding well” to his current medications.
47As noted above, Dr Turgay did not testify at the hearing, but counsel for the respondent employer referred to his report in cross-examining Dr Mildon.
48Dr Mildon confirmed that she has been licensed to practice in Ontario since 1970 and that, as her Curriculum Vitae indicates, she has had specialised training in internal medicine, anatomical pathology, and occupational health and safety. Her main practice focus is diagnostics.
49Dr Mildon testified that when she first saw the applicant in February of 2007, he was very ill and physically exhausted; it was a struggle for him to accomplish anything.
50Dr Mildon testified that CFIDS produces cognitive dysfunction, including impaired memory. She stated that the applicant's cognitive dysfunction is compounded by his ADHD and by the pain and consequent inability to sleep well that he suffers, due to the fibromyalgia and myositis. She observed the following difficulties arising from the cognitive dysfunction:
Distractibility and difficulty with organizing tasks: Mr Kelly would “start something, switch to another task, then maybe goes back to the first or switches from task to task through the day or ensuring days”;
Difficulty with taking in and understanding information even when he took notes;
Poor memory: inability to recall an event that had occurred ten minutes earlier, difficulty remembering appointments even when reminded the day before.
51Dr Mildon stated that, even when the applicant thought he was doing better, she could see significant cognitive dysfunction. In March 2008, she referred the applicant for a brain scan to rule out any other possible causes for his cognitive dysfunction.
52Dr Mildon also reviewed a number of physical disorders suffered by the applicant during the relevant period that reduced the applicant’s energy and exacerbated his cognitive symptoms. In July of 2007, when the applicant’s employment was terminated, Dr Mildon confirmed that he had severe bilateral pyelonephritis and fevers that continued through August. She stated that she told the applicant that he should get legal advice about the termination of his employment, but had to remind him about this ”a couple of times”. Throughout 2008, he had several severe viral illnesses, and was frequently running a fever. She summarised mid-to-late 2008 through 2009 as a particularly bad period in regard to the applicant's health. The applicant’s illnesses and disabilities resulted in “rollercoaster” symptoms— for example, a viral illnesses would result in a reduction in his cognitive functions, sometimes for days or weeks at a time.
53Dr Mildon testified that both she and Dr Turgay had concerns about the applicant not getting the benefit of his ADD medications, and thought this might be due to malabsorption. Dr Mildon confirmed that the applicant's lab tests showed abnormally low levels of vitamins B12 and D, which affected his cognitive functions and his ability to absorb his medications: “he needed to have his general health pulled up before he could make progress” in treating his disorders.
54Dr Mildon noted that the applicant’s circumstances complicated his situation. He lived alone, with no one to assist him, “which made it more difficult for him to cope”. He had only his OW allowance to rely on for subsistence. In addition to the difficulties with getting coverage for the applicant's drug expenses, it was impossible for the applicant to afford the nutritious diet and supplements that were needed to improve his health.
55Dr Mildon also gave evidence about the applicant's ODS appeal. She testified that she had concerns about the applicant's ability to afford his drugs and vitamin C supplements, and his general level of nutrition, while he was on OW. Another patient of hers had obtained the services of a lawyer to file an ODS appeal. She looked up the address and telephone number of the lawyer and gave them to the applicant, and reminded him repeatedly to get an appointment. He finally got an appointment in September of 2008. Once the lawyer was retained, Dr Mildon provided the lawyer with the applicant’s full medical file, and other information needed for the appeal.
56The applicant was not approved for benefits under ODS until February of 2009. Dr Mildon testified that she saw some improvement in the applicant's cognitive state relatively soon after February of 2009.
57Dr Mildon characterised the applicant as extremely optimistic, more than most patients are, about his health. In cross-examination concerning the applicant's volunteering, and his enquiry about coming back to work, she stated that the applicant has a strong will to get better and get back to work, but that he did not understand the nature of CFIDS—“he is very intelligent and knowledgeable about ADD, but knew nothing about CFIDS; it took him two years to get a grasp, and he is still not clear about how it affected his cognitive functions”. Dr Mildon stated that the applicant’s expectations were unduly affected by his period of better health: “he thinks one swallow makes a summer”. She stated that it was possible that with another three to five years of treatment his health might improve significantly, but also stated that this is hard to predict due to the nature of the disability.
The respondent’s evidence relevant to “significant prejudice”
58Mr Absiye testified that became the Executive Director of the respondent employer in October of 2007. He stated that his predecessor did not leave any notes or information relating to the applicant. He has no direct knowledge of events leading to the termination of the applicant's employment in July of 2007. He stated that the then Chair of the respondent's Board, who signed the applicant's letter of termination, left the Board in November 2007. Mr Absiye also testified that another Board member involved with the termination of the applicant's employment had left the Board in 2009, and that a staff person who was involved is “currently not with CultureLink”. Mr Absiye testified that CultureLink only became aware of any issue in regard to the applicant's termination of employment when it received a solicitor's letter dated March 27, 2008.
59In cross-examination, Mr Absiye stated that prior to his appointment as Executive Director he had had some professional involvement with CultureLink, that he had met the applicant, and was in fact on the hiring committee in regard to the applicant's secondment to the position from which he was terminated. He also acknowledged the content of an e-mail dated June 14, 2007 appended by the respondent employer to its Response. The e-mail appears to deal with the eligibility of the applicant for employment benefits, including long-term disability. The e-mail refers to the writer being directed to consult with a former Board member “who happens to be a labour lawyer”. The e-mail states that the former Board member “advised that we send [the applicant] a termination letter in which we advise him of the termination of his position, but she warned us about the fact that we may have left ourselves exposed by having continued paying for his health insurance as this might be argued that it created dependency or expectation”.
60Mr Absiye also admitted that he had not tried to contact any previous employees or Board members who had been involved in the matter at issue in the Application and did not in fact know whether they are available.
ANALYSIS
Good Faith
61In 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 in Lutz v. Toronto (City), 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).
62In 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 (“Corrigan”); Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
63The term “reasonable” has both objective and subjective elements, both of which must be considered within the context of the Code. 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.
64The 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)
65In this case, I find 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 just before July 9, 2008 (a year after the last event) to March 16, 2009 (the date the Application was filed), although evidence pertaining to a previous period may be relevant, as it was in this case.
66Counsel for the respondent employer attempted to cast doubt on the credibility of Dr Mildon, pointing to a letter of referral to another doctor included in the applicant's materials, in which she characterised the applicant as “managing well” on his medications, and another document in which she referred to the applicant as a “productive citizen”. However, I find Dr Milton's evidence as to the applicant's state of health during the relevant period of time consistent and credible.
67Counsel for the employer also suggested that the applicant might have been or should have been advised about the time limit under the Code by the community legal clinic he approached in December 2008, or in his initial phone call to the Human Rights Legal Support Centre in December 2008. There is no evidence that he was so advised, but more importantly, I see no evidence that the applicant was able to proceed to file an Application more quickly than he did.
68Counsel for the applicant suggested that it is not necessary in establishing good faith to prove complete incapacity. I agree with this; the test under s. 34(2) is “good faith”.
69Counsel for the respondent employer did not dispute that the applicant suffered from significant medical conditions, but he pointed out that the applicant had had ADHD for a long time, and that he had coped with deadlines on his job until 2006. Counsel for the respondent employer suggested that the additional medical conditions did not change that, since the applicant is an intelligent man, and while his “rollercoaster” symptoms produced states of ill health, there were also remissions. Counsel pointed to the fact that the applicant could do volunteer work, consulted lawyers and managed to file an ODS appeal.
70In several cases in which applicants raised disability as a contributing factor to lateness in filing Applications, the Tribunal has taken into account the applicant’s ability to undertake other legal proceedings, despite his or her disability, as a factor in the “good faith” analysis. (see for example 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 Lutz v. Toronto (City) 2010 HRTO 769, the respondent relied on those decisions. In allowing the applicant in that case to proceed, I noted clear evidence of disability that specifically hampers or prevents an individual from making the inquiries and taking the actions needed to undertake a legal proceeding, and evidence that any legal proceedings in which the applicant was involved during the period in question were initiated only because the applicant had help from someone else; the evidence showed that he would have been unable to undertake them unaided. There is similar evidence, in this case, that the applicant's disability had a clear effect on his ability to undertake legal proceedings. Further, when the applicant attempted to file a grievance unaided, he was unsuccessful.
71In my view, the medical evidence adduced by the applicant is sufficient to meet the requirements for a waiver of the time limit under s. 34(2). However, the applicant has adduced other evidence of circumstances that exacerbated the effect of his disability on his ability to meet the requirements of s.34. During the relevant time, the applicant in this case was living alone, and living in poverty. (The maximum OW allowance intended to cover basic needs and shelter for a single person living in Toronto during the relevant period was $572 a month: O. Reg. 134/98m ss. 41-42). The applicant’s poverty adversely affected his health as well as putting paid assistance that might have enabled him to file a timely Application beyond his reach. The “demand letter” sent to the respondent, the ODS appeal, and the filing of this Application were accomplished only because of an unusual degree of unpaid assistance, from, respectively, a lawyer acting pro bono, from Dr Mildon, and from staff at ARCH community legal clinic.
72In my view, the “good faith” test requires the establishment of an explanation for lateness in filing that is reasonable for an individual in the applicant’s circumstances. In the circumstances of this case, I find that the applicant has met the “good faith” test.
Prejudice
73The establishment of good faith is not sufficient to meet the requirements of s. 34(2); it is necessary to consider evidence relating to prejudice to the respondent.
74Mr Absiye testified that he has no direct knowledge of events leading to the termination of the applicant's employment, and that his predecessor did not leave any notes or information relating to the applicant. However, because he had had some professional involvement with CultureLink prior to becoming Chair of the Board, he had met the applicant, and had been on the hiring committee in regard to the applicant's secondment to the position from which he was terminated.
75The individual who signed the applicant's letter of termination and another Board member involved with the termination of the applicant's employment have left the Board. However, Mr Absiye also admitted that he had not tried to contact any previous employees or Board members who had been involved in the matter at issue in the Application and did not in fact know whether they are available.
76In my view, the evidence of the respondent falls short of establishing prejudice, much less “significant prejudice”, the test set out in section 34(2).
77The respondent employer’s Request for an Order is dismissed. The Registrar will set a date for hearing.
78I am not seized of this matter.
Dated at Toronto, this 4^th^ day of May, 2010.
“Signed by”
Judith Keene
Vice-chair