Krajisnik v. Linamar, 2011 HRTO 143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Radomir Krajisnik Applicant

-and-

Linamar Corp./Traxle Manufacturing Respondent

DECISION

Adjudicator: Eric Whist Date: January 20, 2011 Citation: 2011 HRTO 143 Indexed as: Krajisnik v. Linamar

APPEARANCES

Radomir Krajisnik, Applicant ) M. Tchavoshi, Representative Linamar Corp./Traxle Manufacturing, ) Alison Adam and Meighan Respondent ) Ferris-Miles, Counsel

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”) on November 16, 2009, alleges discrimination in employment on the basis of disability.

2The applicant was injured in April 1999 while working for the respondent and as result was provided with modified work. The applicant states that he was injured again in October 2001 and on May 30, 2002, the last day he worked. The applicant alleges that the modified work the respondent provided was beyond his medical restrictions and contributed to his injuries. The applicant’s employment with the respondent was formally terminated in 2006.

3The applicant alleges that from 2002 to 2009 he attempted to obtain documents from the respondent in order to pursue claims before the Workplace Safety and Insurance Board (“WSIB”) and a subsequent appeal of these claims before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The applicant contends that the documents he was attempting to obtain from the respondents provide evidence of the respondent’s discriminatory actions prior to May 30, 2002 and that the refusals by the respondent to provide these documents are further incidents of discrimination.

4The respondent requests, as part of the Response, that the Application be dismissed on the basis that it was not filed within one year of the last incident of alleged discrimination and that there are no good faith reasons for the applicant having failed to file his Application within the time limits set out in the Code.

5On August 4, 2010 the Tribunal issued a Case Assessment Direction to state that a half day hearing would be held to consider whether the Application should be dismissed for delay and whether the Application had a reasonable prospect of success in light of the issues raised by the respondent in its request.

6A half day hearing was held on October 19, 2010. The applicant testified and both parties provided submissions. The parties provided documentary evidence and case law for my consideration.

BACKGROUND

7The following facts are not in dispute. The respondent manufactures automotive components. The applicant commenced his employment with the respondent in January 1994. On April 22, 1999 the applicant was injured while at work and filed a WSIB claim that was accepted. The applicant returned to work with certain medical restrictions and was assigned modified duties.

8The applicant reported a further injury on October 10, 2001 and filed a second WSIB claim that was denied. The applicant was subsequently assigned to several different modified jobs.

9On May 30, 2002 the applicant left work stating that he had been injured and that his medical condition prevented him from performing his assigned work. This was the last day the applicant worked.

10The applicant subsequently applied for disability benefits through the insurance carrier and in November 2004 he was determined by the insurance carrier to be totally disabled from any occupation. As a consequence, was provided with long term disability benefits until age 65.

11The applicant made several claims to WSIB in 2001 and 2002. In a decision dated December 28, 2005 the WSIB denied all the applicant’s entitlement claims based on the injuries he reported on October 10, 2001 and May 30, 2002. On March 24, 2006 the applicant appealed this decision to WSIAT. This appeal is still in progress.

12In March 2006 the respondent concluded that the applicant’s employment had been frustrated due to the applicant’s permanent and total disability and terminated his employment.

13The applicant contacted the respondent requesting documents regarding his work history for the period January 1994 to May 2002 for use in his WSIB and WSIAT proceedings. The applicant stated that he asked for documents from the respondent by telephone and by letter regularly in the period 2003 to 2009. Four written requests from the applicant to the respondent dated March 17, 2006, March 22, 2006, May 7, 2008 and October 16, 2009 were before me. The last three letters ask for a broad range of documents including job descriptions for the applicant’s modified jobs. All four letters indicate that they are being copied to WSIAT or WSIAT and WSIB.

14I also had before me a letter dated April 5, 2006 from the respondent to the applicant in response to the applicant’s March 17, 2006 letter and his March 22, 2006 letter in which the applicant requested copies of the applicant’s modified job duties. The respondent’s letter states that the respondent sent all job descriptions to the WSIB and that the applicant or his lawyer could access these documents and the applicant’s WSIB file by contacting his WSIB adjudicator. There is no evidence that the respondents replied to any further requests from the applicant for documents including requests made by the applicant in his May 7, 2008 and October 16, 2009 letters.

15The applicant also stated that in 2009 he obtained a copy of a report prepared by the WSIB’s ergonomist from a source other than the respondents. In his view this document indicated that the ergonomist had concerns about injuries that could arise from one of the modified jobs the applicant was assigned. The applicant stated this was evidence that the respondent knowingly assigned him to jobs that were not appropriate for his medical restrictions and in so doing failed to provide appropriate accommodation for his disabilities. The applicant contends the respondent’s refusal to provide requested, possibly incriminating, documents are further acts of discrimination.

16It is relevant and important to note that the applicant also stated that it was only six months prior to the filing of his Application on November 16, 2009 that he learned of his rights to file an application under the Code in relation to his experiences with the respondent.

REQUEST TO DISMISS FOR DELAY

17The focus of the hearing was on whether the Application should be dismissed for delay. 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 of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) if the delay is incurred in good faith and does not cause substantial prejudice to the respondent. Section 34 specifically states:

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.

The Respondent’s Position on Delay

18The respondent submits, in part, that the respondent’s repeated refusals to provide documents for the applicant to use in his WSIAT proceeding, are not sufficiently related to the alleged incidents of discrimination that took place during the applicant’s employment to be considered as part of a series of incidents within the meaning of section 34(1). The respondent submits that the Tribunal has found that incidents of discrimination have to be related in order to be considered a series of incidents. See Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143 at para 8.

19The respondent argues that the Tribunal has found that an applicant cannot unilaterally create a series of incidents within the meaning of 34(1) by repeatedly requesting information from a respondent. See Heslin v. Univar Canada, 2010 HRTO 1885 (Can LII)) at para. 6. This is what the applicant has done in this case.

20The respondent also submits that the Tribunal has found that an applicant cannot rely on a series of incidents within the meaning of section 34(1) if there is a gap of more than one year between some of the incidents. See Chintaman v. Toronto District School Board, 2009 HRTO 1225 at para. 11. The respondent submits that, in the present case, there are a number of such gaps, for example, between when the applicant wrote to the respondent seeking documents on March 22, 2006 and May 7, 2008 and then again on October 16, 2009.

21The respondent further submits that the applicant has not provided a good faith reason for the delay in the filing of his Application and thus does not meet the requirement of section 34(2). The respondent submits that the applicant cannot rely on the argument that he only learned of his rights under the Code in 2009 as a good faith reason to overcome the expectation that he file his Application within the required timeframe. The respondent submits that the Tribunal has repeatedly found that ignorance of one’s rights under the Code is not a good faith reason for not filing an Application within the one year time limit set under the Code. See Tedla v. Emtol Manufacturing, 2009 HRTO 2082 at para. 8.

The Applicant’s Position on Delay

22The applicant submits that he repeatedly telephoned and wrote to the respondent during the period of 2002-2009 for documents related to his employment which the respondent refused to provide and that there was never a gap of over one year in these efforts. The applicant contends that these refusals constitute further incidents of discrimination given the respondent was knowingly withholding documents that would indicate its discriminatory actions prior to May 30, 2002.

23The applicant submits that it is only when he did obtain a key document, albeit not from the respondent, he saw a lot of inconsistencies and indeed fabrications in the respondent’s documents that led him to more clearly understand the respondent’s discriminatory actions while he was employed.

24The applicant submits that his last written request for documents is dated October 16, 2009, less than a month prior to his Application. Consequently he meets the requirement for section 34(1)(b) in that the last incident of discrimination in a series occurred within one year of the date of the Application.

25The applicant argues that he acted in good faith by filing his Application shortly after learning of his rights under the Code.

ANALYSIS

Timeliness of Application

26Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. Under 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.

27In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal stated that 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. 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.

28I am of the view that the only incidents of discrimination raised by the applicant in his Application are in relation to the applicant’s employment with the respondent up until May 30, 2002. Accordingly, it was incumbent on the applicant to pursue his rights under the Code with diligence after May 30, 2002 and to file a complaint in relation to these alleged incidents of discrimination in a timely fashion. He did not. The applicant has failed to meet the time limitations set out in section 34(1) in relation to any potential infringements of his rights under the Code.

29I do not accept the applicant’s baldly stated contention that the respondent’s subsequent failures to provide him with requested documents constitutes further incidents of discrimination. Accordingly, I do not accept the claim that there has been a series of incidents of discrimination from 2002 until within one year of the filing of his Application in November 2009.

30In my view the applicant’s attempts to obtain documents from the respondent after he ceased working were in order to gather evidence in support of legal claims made about incidents prior to May 30, 2002. These efforts are properly characterized as requests for the production of documents. Requesting the production of documents is a process by which parties can obtain information as part of a legal proceeding and generally, this process has established rules and practices. In this case the applicant was attempting to obtain documents from the respondent in order to gather evidence as part of his proceedings before the WSIB and WSIAT in relation to complaints arising from his work experiences prior to May 30, 2002. There are often disputes about the disclosure of documents in legal proceedings with one party or another resisting a request for documents. A refusal to provide wanted documents as part of a legal proceeding cannot simply be labeled as an act of discrimination.

31In the present case there is a further issue as to whether the respondent was obliged to respond to the request for documents as part of any legal procedure. The respondent wrote to the applicant in April 2006 stating that if the applicant wanted certain documents he should be making the request to WSIB to access his WSIB file. The applicant continued to seek documents from the respondent without any specific reference to the legal basis on which the respondent was required to provide these documents. It appears the respondent does not respond to these further requests.

32I do not accept that the applicant can unilaterally contact the respondent to ask for documentary evidence about past employment practices outside a clearly defined legal process and then label the respondent’s decision not to produce such documents as further incidents of discrimination. If the applicant had concerns about whether his rights under the Code were violated when he was working for the respondent it was incumbent on him to file an application in a timely manner.

Was the Delay in Filing the Application Incurred in Good Faith

33The Tribunal has held that to in order to establish that a delay was incurred in good faith under section 34(2) an applicant must provide some reasonable explanation for the delay. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

34The applicant provided two explanations for the delay. One, he only fully came to realize the respondent’s discriminatory actions when he discovered in 2009 an ergonomist’s report which he believed revealed that the respondent assigned him to a modified job in 2001 that was beyond his medical limitations. Two, he only came to know of his rights under the Code in relation to his experiences with the respondent in 2009 and that he acted with due diligence by filing his Application shortly afterwards.

35The applicant’s argument that he only fully came to know of the respondent’s past discriminatory actions in 2009 is an argument that essentially relies on the doctrine of reasonable discoverability. In Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal states that the reasonable discoverability doctrine may provide an exception to the requirement to meet a statutory limitation period in order to ensure fairness to parties who simply cannot know within the required timeframe that they have a case.

36I do not accept this argument in the circumstances of this case. I am not satisfied that it was only in 2009 that the applicant came to believe that the respondent had unfairly treated him including assigning him modified work in 2001 and 2002 that was beyond his physical limitations. The applicant’s Application, Reply and further written materials are full of references to earlier concerns the applicant had about how the respondent had treated him in the period prior to May 30, 2002; for example a February 22, 2002 letter from the applicant’s attending physician noting the applicant’s the concern that the respondent had given him work beyond his medical restrictions.

37In my view the applicant had crystallized a belief that the respondent had treated him unfairly while he was still working for the respondent. In my view the document allegedly uncovered by the applicant approximately seven years later in 2009 was not information that helped the applicant discover his case but rather evidence that he determined could help support his allegations. As stated in Klein, aggrieved persons cannot delay making a claim under the Code in order to gather evidence that confirms their suspicions or buttresses their case.

38The applicant argues that he did not know of his rights under the Code until 2009. In Lutz v. Toronto (City), 2009 HRTO 1137 the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith” and concluded it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights, that they must also establish that they had no reason to make enquiries about those rights.

39The applicant maintains that he did not know he could file an Application until 2009 notwithstanding that he pursued multiple claims before the WSIB and an appeal before the WSIAT on claims related to his employment with the respondent including periods in which he was assigned modified work because of his physical condition. The applicant had, at different times, the benefit of counsel. He could have, in my view, made enquiries about his right under the Code. The applicant’s uninformed belief he could not pursue rights under the Code until 2009 is not sufficient to establish a good faith justification for the delay in filing an Application

40The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579).

41For all these reasons the Application is dismissed on the basis of delay.