HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sharon Goldthorpe
Applicant
-and-
Markham Stouffville Hospital
Respondent
-and-
Canadian Union of Public Employees, Local 3651
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Goldthorpe v. Markham Stouffville Hospital
WRITTEN SUBMISSIONS
Sharon Goldthorpe, Applicant ) Patrick James, Representative
Markham Stouffville Hospital, ) Sarah A. Eves, Representative
Respondent )
Canadian Union of Public of ) Ryan Goldvine, Representative
Employees, Local 3651, Intervenor )
1The applicant filed an Application on December 6, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability. The Application alleges harassment and failure to accommodate. The applicant alleges she was informed by her employer in October 2009 that she was required to return to a non-accommodated position.
2On February 18, 2011, the respondent filed a Request for Order During Proceedings (“Request”) asking the Tribunal to dismiss the Application because the Application was not filed within one year of the last incident of alleged discrimination. The respondent submits that the Application was filed approximately 15 months after the last incident of alleged discrimination.
3By way of Interim Decision 2011 HRTO 596, the Tribunal directed the parties and the intervenor (“the Union’) to file written submissions with respect to the issue of delay. Previously, the Tribunal received submissions from the parties with respect to the issue of deferral.
4The purpose of this Interim Decision is to set out additional directions regarding the outstanding issues.
APPLICANT’S SUBMISSIONS
5The applicant alleges that she experienced on-going harassment from 2006 to 2009 and that she was informed by the respondent on October 28, 2009 that it would no longer provide accommodation. The applicant acknowledges that she filed a workplace grievance in September 2007; however, she indicates that the grievance was never pursued by the Union. The applicant alleges that she was informed by the Union in July 2010 that there was nothing more that it could do to help.
6The applicant submits that the Tribunal should exercise its discretion and allow her Application to proceed because the delay in filing the Application was a minimal 36 days. The applicant argues that the delay was incurred in good faith because she had attempted to pursue her human rights concerns through a workplace grievance, but the Union failed to properly advance her grievance and that process stalled in 2010.
7The applicant contends that the delay was also occasioned for reasons related to her family status. The applicant alleges that in 2009 her minor grandchildren were put in the care of the Children’s Aid Society and, as a result, she was embroiled in acrimonious child protection litigation until November 2010 when she was appointed legal guardian of the children. The applicant submits that she was unable to file this Application any earlier because of these circumstances.
8The applicant further submits that the respondent has suffered no prejudice by the delay. In sum, the applicant argues that the Application should not be dismissed because of delay and that deferral is not appropriate because her workplace grievance is not active.
RESPONDENT’S SUBMISSIONS
9The respondent submits that the Application is untimely because the Application was filed beyond the Code’s one-year timeline. The respondent argues that the delay was not minimal in that the alleged events date more than four years before the Application was filed.
10The respondent points out that the applicant’s grievance was also filed over three years prior to the Application. The respondent argues that, given the applicant was formerly the president of the local Union, the applicant is well aware of the necessity of preserving her rights by filing a timely claim. The respondent submits that the applicant has provided an inadequate explanation for the delay in filing the Application.
11The respondent further argues that there is no evidence to support the applicant’s submission of good faith based on her family status. The respondent contends that the applicant has not established that her change in family status affected her ability to pursue her human rights.
12The respondent argues that it will suffer substantial prejudice if the Application is allowed to proceed because, given the amount of time that has passed, the witnesses’ recollection and memory of the events have faded.
13The respondent argues that, in the alternative, the Application should be deferred pending the disposition of the applicant’s grievance.
INTERVENOR’S SUBMISSIONS
14The Union indicates that it takes no position with respect to whether or not the Application should be deferred; however, it notes that no dates have been set for the hearing of the grievance and no other grievances have been pursued. Although the Union submits that it also takes no position with respect to the respondent’s request to dismiss because of delay, the Union stated:
“At this time, the Union is unaware of any facts or allegations that would bring the Applicant’s allegation of an event which occurred in October 2009 within the time limits prescribed the Human Rights Tribunal, or any reasons for delay that might trigger the Tribunal’s discretionary authority to accept a complaint notwithstanding its timeliness”
DIRECTIONS
15It is unclear whether or not the applicant’s grievance is outstanding and active. It is also unclear whether the alleged discrimination is continuing. In these circumstances, the Tribunal will convene a half-day hearing for the purposes of receiving evidence, if necessary, and hearing the parties’ oral submissions with respect to these issues and, specifically, whether the Application is outside of the Tribunal’s jurisdiction because of delay and/or should be deferred. Among other things, the parties should come prepared to adduce evidence and make submissions regarding:
- What is the status of the applicant’s grievance;
- Does the Application allege a continuing breach and/or what is the date of the last event upon which the Application is based;
- What is the evidence with respect to any alleged good faith and/or whether the delay was incurred in good faith; and
- If there was delay in filing the Application, whether substantial prejudice would result to anyone affected by the delay if the Application was to proceed.
16The Tribunal will schedule a half-day hearing with respect to these matters. If any of the parties intends to call oral evidence, witness statements must be provided to the other parties and filed with the Tribunal no later than 14 days prior to the date of the hearing. If any party wishes to file additional written submissions, legal authorities or documentary evidence, these materials must be provided to the other parties and filed with the Tribunal no later than 14 days prior to the date of the hearing.
17I am not seized.
Dated at Toronto, this 14th day of June, 2011.
”signed by”________
Ena Chadha
Vice-chair