Wagman v. VPI Burlington, 2011 HRTO 1194

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Wagman

Applicant

-and-

VPI Burlington and Martha Colangelo

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: June 21, 2011

Citation: 2011 HRTO 1194

Indexed as: Wagman v. VPI Burlington

1The applicant filed an Application on April 21, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability and record of offences in employment.

BACKGROUND

2In an earlier Interim Decision, 2011 HRTO 447, the Tribunal directed the parties to file written submissions regarding whether the Application is outside the Tribunal’s jurisdiction (power to decide) because it was filed more than one year after the last incident of discrimination.

3The applicant did not file any documents in support of her position within the timeframe set out in the Interim Decision.

4The respondents filed written submissions on March 20, 2011. They argue that the Application ought to be dismissed as untimely. They state that, in the year following her dismissal, the applicant was able to assert rights before the Workplace Safety and Insurance Board (“WSIB”). They state that the delay in filing the Application was not in good faith, within the meaning of section 34 of the Code. The respondents also argue that they would be prejudiced by the delay.

5On May 4, 2011, the applicant requested an extension of time to June 5, 2011, in which to respond to the respondents’ submissions. On May 4, 2011, the applicant also filed medical documents with the Tribunal and provided a copy of these to the respondents.

6In a second Interim Decision, 2011 HRTO 1011, the Tribunal granted the applicant’s request for an extension of time. The Tribunal ordered that, by no later than June 5, 2011, the applicant file with the Tribunal and provide to the respondents her written submissions regarding the jurisdictional issue. The Tribunal held that the respondents need not take further steps at this stage of the proceedings.

7On June 6, 2011, the applicant filed written submissions with the Tribunal. These written submissions seem to be in reply to the Response to the Application. They do not address the jurisdiction issue identified in paragraph 2, above.

DECISION

8The applicant has had an opportunity to make submissions on the issues of delay and the Tribunal’s jurisdiction. In the circumstances, it is appropriate to determine the issue based on the materials filed.

9Section 34 of the Code states:

(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.

10Pursuant to section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

Was there a delay?

11In her Application, the applicant states that the last incident of alleged discrimination occurred on December 15, 2008 when her employment with the respondent was terminated. The Application was filed on April 21, 2010, more than one year later.

12Accordingly, I must consider whether the delay was incurred in good faith.

Was the delay in good faith?

13The applicant argues that, in the circumstances, the delay was in good faith. She states that she delayed filing the Application because she was suffering from trauma and depression as a result of the alleged harassment and bullying by the respondents.

14The applicant states that it took more than a year for her to obtain the counselling she needed and that she continues to feel humiliated and hurt. The applicant states that, although it was difficult to do so, she began searching for work and taking part in interviews shortly after her dismissal. Although she has held a number of different jobs since being dismissed by the respondents, she states that she has been unable to keep those jobs because of the incidents that give rise to this Application and the effect they have had on her health.

15The applicant has filed medical documentation, including:

a) a note from Dr. Richard Porter, dated May 3, 2011, stating that the applicant’s ability to cope under stressful circumstances is “quite restricted”, especially “under more personal stress”;

b) a note from Dr. Fred Hui, dated October 7, 2008, stating that the applicant has extreme fatigue and should not work more than 8 to 9 hour per day;

c) a note from Dr. Fred Hui, dated August 18, 2008, stating that the applicant is experiencing fatigue;

d) a medical certificate completed by Dr. Fred Hui and dated October 9, 2008 and stating that the applicant has severe adrenal fatigue, anxiety and depression; and

e) a note from Dr. Fred Hui, dated November 6, 2008 and stating that the applicant cannot work more than 8 to 9 hours per day and that a “peaceful work environment” would assist her recovery.

16The respondents state that despite any health issues the applicant was able to pursue a WSIB within the year following her dismissal. The applicant has not disputed this.

17In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons directly impeded the applicant’s ability to file an application, the nature of the allegations, and whether the applicant was able to raise allegations in other venues during the period in question. See Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

18In the circumstances of this Application, I am not satisfied that the applicant was unable to pursue her allegations under the Code in a timely manner or that the delay was incurred in good faith. First, the applicant does not dispute that she pursued a WSIB claim during the year following her dismissal. The applicant provides no information as to why she could commence and participate in WSIB proceedings but not pursue allegations of discrimination under the Code.

19Second, the medical information filed by the applicant does not establish that any health issues prevented her from filing an application within the limitation period provided in the Code. In the main, the medical notes refer to health issues that existed prior to the applicant’s dismissal. They do not relate to the one-year period following the termination of her employment nor do they suggest that her health concerns were such that she was unable to comply with the limitation period. The 2011 medical note post-dates the filing of the Application. While the applicant had difficulty coping with stressful situations as of at least May 3, 2011, this did not prevent her from filing the Application on April 21, 2011.

CONCLUSION

20For the above reasons, the Application cannot proceed under section 34(1) of the Code and is dismissed.