Brooks v. North York General Hospital, 2011 HRTO 1528

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veloris Brooks

Applicant

-and-

North York General Hospital, Esther Koven, Kevin Rittenberg

and Ashton White

Respondents

-and-

Service Employees International Union Local 1 Canada

Intervenor

DECISION

Adjudicator: Alison Renton

Date: August 16, 2011

Citation: 2011 HRTO 1528

Indexed as: Brooks v. North York General Hospital

APPEARANCES BY:

Veloris Brooks, Applicant ) Self-represented

North York General Hospital, )

Esther Koven, and Ashton ) Hal Rolph, Counsel

White, Respondents )

Kevin Rittenberg, Respondent ) Lisa Constantine, Counsel

Service Employees International )

Union Local 1 Canada, )

Intervenor ) Gail Misra, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 29, 2009 alleging discrimination on the basis of disability in employment, and specifically a failure of the respondents to return her to work. The applicant identified that she was a member of the Service Employees International Union Local 1 Canada (the “union”) at the time of the alleged discrimination. As a remedy, she seeks one million dollars.

2On her Application form, the applicant identified October 31, 2007 as being the date of the last event upon which her Application was based. However, her allegations against the personal respondents Kevin Rittenberg (“Dr. Rittenberg”) and Esther Koven (“Ms. Koven”) date back to 2000.

3She alleges that in May 2000 Dr. Rittenberg read her return to work medical note and told her “Go get better and then come back to your job”. She alleges that after that Ms. Koven, who was an employed nurse in the respondent hospital’s health office with whom she had various communications, told her “you were hired to give medication and if you cannot give medications I cannot have you back”.

4The applicant alleges that in May 2005 she went to the respondent hospital to seek the assistance of the personal respondent Ashton White (“Mr. White”) who was in human resources. Mr. White was unavailable so she spoke with another individual in the department who took down her concerns and advised that he would share her concerns with Mr. White. The applicant did not hear back from Mr. White. She alleges that she wrote to Mr. White around June 2007, but did not hear back from him. She also contacted him in October 2007 to inquire why she was being denied the opportunity to return to work. He advised her that she needed to present medical documentation about returning to work. She submits that she had previously provided medical documentation and within her Application references some medical documentation dated 2000 to 2003.

5The applicant submits that she had a stroke in 2004. She alleges that at some unspecified point after the stroke, she contacted a union representative and requested that he speak with the corporate respondent to provide her with some work. She alleges that the union representative told her that he spoke with the corporate respondent and was told that it would not accommodate the applicant.

6In an earlier Interim Decision, 2010 HRTO 453 (the “first Interim Decision”), the Tribunal noted that a Notice of Intent to Dismiss (“NOID”) had been issued to the applicant before the Application was sent to the respondents for a response. The NOID directed the applicant to provide submissions explaining the delay in filing her Application as it was outside the one year limitation period in section 34(1) of the Code. The applicant submitted several letters responding to the NOID, one dated February 15, 2010 and the other dated February 17, 2010, that, but for the change in date, contained the same information (“the letter”). In the letter, the applicant stated that since 2007 she had slipped into depression and suffered confusion, memory loss, speech problems and headaches. She submitted that due to these complications in her health, she was not able to complete the Application accurately, which caused the delay in filing it.

7Based upon the information provided by the applicant, the Tribunal determined in the first Interim Decision that it was not plain and obvious that the applicant’s delay in filing the Application was not incurred in good faith. The Tribunal determined that it would serve the Application and a copy of the Interim Decision on the respondents. The Tribunal noted that this was not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code.

8The respondents filed their Responses and the Intervenor filed a Request to Intervene. All the respondents requested that the Tribunal dismiss the Application because of delay and because they have been prejudiced in their ability to respond to the allegations. The applicant ceased working at the corporate respondent on October 31, 1999 as a result of injuries that were allegedly sustained in a motor vehicle accident (“MVA”). She never returned to work, and has never been terminated.

9The Intervenor submitted that prior to 1999 the applicant was not a unionized employee. In 2000, and as a result of the Public Sector Labour Relations Transition Act, 1997, the Branson hospital staff and North York General Hospital staff were consolidated in service and office and clerical bargaining units. As a result of an Ontario Labour Relations Board decision in November 2000, multi-site bargaining units were created and the applicant became part of a larger unionized workforce.

10Dr. Rittenberg has not been associated with the corporate respondent since 2003. He submits that there are no Code allegations against him. Ms. Koven retired in 2002.

11The corporate respondent sent communications to the applicant in December 2002 and January 2003, but the applicant never responded. In June 2004, the corporate respondent was contacted by a lawyer representing the applicant in relation to her MVA and requested copies of the applicant’s employment records. In October 2007 the applicant wrote to the corporate respondent requesting information and documentation pertaining to a civil action arising from the MVA and inquiring why she was being denied employment. Mr. White responded stating she was on a medical leave of absence and would be required to provide medical documentation about her ability to return to work. The applicant did not respond.

12In October 2008, the corporate respondent received a Summons to Witness in connection with an Ontario Superior Court of Justice action brought by the applicant, as plaintiff, against several defendants in relation to the MVA. In February 2009 the corporate respondent received another Summons to Witness in connection with another Ontario Superior Court of Justice action brought by the applicant, as plaintiff, against an insurance company in relation to the MVA. That summons requested documentation from the corporate respondent. Attached to the second summons was a letter written by defence counsel advising that a trial date was scheduled for March 9, 2009 and the applicant was representing herself.

13A member of the corporate respondent’s human resources department attended the trial to produce the records. He observed that the applicant was present at the trial. The corporate respondent later learned that the civil actions had been settled during the course of trial by minutes of settlement and a release.

14The applicant filed a Reply. In it, she submits that she has encountered some unpleasant obstacles during the past nine years and her efforts dealing with the corporate respondent were without success. She states that she had some “high profile lawyers” representing her in her civil actions, but did not have a lawyer to represent her during her trial and did not have “legal intelligence to go against my defendants [sic] lawyers”. On the second day of court, she submits that the judge observed her “cognitive impairments, etc. and gave orders to everyone involved with the case”. The next day she returned with her power of attorney, “[t]hings were explained to her and she read over the documents” and a settlement was reached. She has suffered from depression over the years.

15The applicant also attached to her Reply a letter from Dr. Kakar dated July 8, 2010 in which Dr. Kakar states:

Ms. Brooks is a 58 year-old female who was referred for a psychiatric assessment as a result of her mental state from not being able to be reintegrated into the workforce after having suffered a MVA in October 1999. The hassles with her employer and resulting depressing caused her to be unable to mental [sic] function adequately to formulate an action such as she now has with the Human Rights Tribunal action and this has resulted in an understandable delay.

16In a second Interim Decision, 2010 HRTO 1219 (“the second Interim Decision”), the Tribunal stated that it would schedule a hearing in order to deal with the delay issue. The hearing was held on October 19, 2010 and all the parties participated as did the union. At the hearing, the applicant testified and was asked questions by counsel for the respondents, as well as from the Tribunal.

The Applicant’s Testimony

17During her testimony, the applicant provided details with respect to the merits of her Application. She testified that in October 1999 she had a motor vehicle accident, and by 2001 started to feel better about returning to work and received a letter from her family physician confirming her return and her restrictions about administering medications. She testified that she contacted Dr. Rittenberg and Ms. Koven. Dr. Rittenberg allegedly told her to return when she was medically well and Ms. Koven said that there was no work available for her if she could not dispense medications. She worked for 10 months at a drug and mental health centre until smoke inhalation caused her to stop working.

18The applicant stated that her medical condition, including a stroke in February 2004 and ongoing depression, caused her delay in filing her Application.

19In cross-examination from Mr. Rolph, counsel for the hospital respondents, the applicant confirmed that in 2001 she commenced civil action against the individuals involved in her motor vehicle accident and their insurance company. She testified that she retained a lawyer to commence these actions and from 2001 until March 2009, when they were settled, used the services of at least four lawyers. Copies of the releases that she signed against all defendants were introduced into evidence at the hearing. She represented herself in court in 2009 when the actions were settled during their trial. Her daughter helped her to review the release language that was part of the settlement. The release language states that the applicant understands what she is signing and the applicant acknowledged it said that but testified that her daughter understood the language better than she did.

20In cross-examination from Ms. Constantine, counsel for Dr. Rittenberg, the applicant confirmed that as of March 2001 it was her family doctor’s opinion that she could return to work with the corporate respondent, except that she could not distribute medications. She met with Dr. Rittenberg only once and it was in May 2001, the same year her civil court actions commenced. She worked in 2001 and 2003.

21The applicant confirmed, during cross-examination, that part of her civil court action was the allegation that she had been unable to secure steady employment because of the injuries she sustained in the motor vehicle accident. She received approximately $153,000 in settlements against the defendants in the civil court actions and a month after entering into those settlements, filed her Application. She confirmed that a litigation guardian was not appointed during her civil proceedings.

22During her cross-examination, the applicant testified that she first considered seeking a remedy for her human rights allegations in October 2007. However she waited a further 1.5 years to file her Application because at times she did not want to proceed with it and her daughter assisted her with it.

23In response to questions during her cross-examination by Ms. Constantine that part of Dr. Kakar’s report was written in first person, the applicant testified that she spoke with him about that and Dr. Kakar said that his secretary made mistakes in typing out the letter. The applicant gave Dr. Kakar a copy of her submissions attached to her Reply and he had that, as well as notes from her visit, in preparing the report.

24In response to questions from the Tribunal, the applicant testified that she stopped seeing Dr. Kakar in 2002 and did not see him until 2010 when she requested that he prepare his report for the Tribunal. During her visit with Dr. Kakar in 2010, the applicant told him what happened to her since 2002, and he took that information as well as his own notes in preparing his report.

The Applicant’s submissions

25The applicant submits that her Application ought not to be dismissed due to delay. Her cognitive problems and depression have caused her a number of problems over the years and contributed to her delay in filing her Application.

The Submissions of the Corporate Respondent, Mr. White and Ms. Koven

26The corporate respondent, Mr. White and Ms. Koven submitted that the Application should be dismissed for delay. These respondents noted that during her testimony, the applicant admitted that as of October 2007, at the latest, she thought she had been subjected to discriminatory treatment by these respondents. From 2001 to March 2009, the applicant did not file a complaint asserting her human rights had been violated, but she obtained counsel and commenced several civil actions. One of her counsel wrote to the corporate respondent in 2004 requesting employment information. The applicant, these respondents submit, had the opportunity to consult with her counsel about returning to work and chose not to pursue this issue, but, instead, pursued other civil actions through the courts, notwithstanding any medical issues that she had.

27They argue that the releases signed by the applicant with respect to her civil actions demonstrate that she had the mental capacity to represent herself and enter into settlements.

28These respondents further submit that Dr. Kakar’s report should be given no weight as it was written by Dr. Kakar as an advocate of the applicant rather than as a disinterested medical expert. These respondents note that there is no mention in Dr. Kakar’s report about how the applicant was able to pursue other civil actions, yet not be able to turn her mind to what remedies she had against the respondents. Waiting for other actions to conclude does not meet the test for reasonable explanation as required by section 34(2) of the Code. The respondents argue that they are prejudiced by the length of the delay because of fading memories as a result of the passage of time. Further, Dr. Rittenberg has not been associated with the respondent hospital since 2003, and Ms. Koven retired in 2002. Trying to determine where the applicant might have been placed in the workplace in 2000 and onwards, with the previous non-unionized employees becoming unionized in 2000, at this point is prejudicial as it is like “trying to put Humpty Dumpty together again”. Finally, the respondents submit that they are prejudiced because of the applicant’s current assertions of what she was capable of doing back in 2000 and onwards.

Dr. Rittenberg’s submissions

29Dr. Rittenberg submitted that the Application against him should be dismissed due to delay. The allegations against him are based upon a single encounter from May 2000 and yet the Application was not filed until April 2009. Dr. Rittenberg suggests that a reasonable inference to be drawn from the applicant’s delay in filing the Application is that the applicant wanted to wait until the civil actions were settled before filing her Application because she was taking contradictory positions in the proceedings. In the civil actions she was seeking loss of wages because of inability to work and in this Application she claims that she could work. It would have compromised the applicant’s civil case if she filed her Application before the civil proceedings were concluded. As such, Dr. Rittenberg submits that there is no good faith for the applicant’s delay in filing her Application.

30Dr. Rittenberg also claims that given the length of time since the alleged encounter between him and the applicant in 2000 he is prejudiced in his ability to remember the alleged incident. He has no specific memory of meeting with the applicant, in 2000 or 2001, and he has not been affiliated with the corporate respondent since 2003.

Analysis

31Section 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 subsection 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.

32For the reasons set out below, I find that the allegations contained in the Application are untimely and that the applicant has not demonstrated that her delay in filing her Application was made in good faith. In making this determination, the Tribunal is not making any findings on whether or not the applicant was discriminated against with respect to employment by the respondents. In light of the delay in filing the Application, it is dismissed.

33In order to satisfy the Tribunal that the delay was incurred in good faith, an 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. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

34The allegations against Dr. Rittenberg and Ms. Koven are from 2000 or 2001 as she testified in cross-examination, and as such, under the current Code, the applicant has one year from that date in 2000 or 2001 to file her Application against them. Instead, her Application against them was filed approximately 8 or 9 years later and, as such, the applicant is required to provide a reasonable explanation for the resulting seven or eight year delay in filing against them.

35The allegations against the corporate respondent and Mr. White are, at the latest, from October 2007, although since the essence of her complaint is that she was not returned to work when she was able to do so, it is more likely that the date of the alleged discrimination against the corporate respondent is from 2000 and is tied into the allegations about Dr. Rittenberg and Ms. Koven. The applicant is required to provide a reasonable explanation for the delay in filing against the corporate respondent. Even accepting that the alleged discrimination against the corporate respondent and Mr. White are from October 2007, which gave the applicant until October 2008 to file her Application, she has to account for the six month delay in filing her Application.

36In explaining the reasons for her delay, the applicant states that her medical condition, and specifically depression and cognitive difficulties, caused the delay. With respect, I do not find that the evidence that the applicant has submitted in this regard provides a reasonable explanation for her delay in filing her Application.

37While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; and Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

38Some of the medical documentation that was submitted by the parties includes documentation from the applicant’s family physician dated March 21, 2001, June 23, 2003 and December 10, 2003 which state that the applicant was able to return to work, albeit with some restrictions. The applicant in fact worked, as she testified, in 2002 and 2003. Those dates are certainly beyond the one year limitation period in relation to the allegations about Dr. Rittenberg and Ms. Koven. The applicant did not provide any explanation as to why she was able to return to work in 2002 and 2003 and submit medical documentation indicating that she was able to work, yet not pursue a human rights complaint against these personal respondents.

39The August 13, 2010 letter from Dr. Choi-Fung confirms that the applicant was “totally disabled on Friday, February 13, 2004” and can return to modified duties August 16, 2010. I do not find it to be of assisting in determining whether or the applicant had a reasonable explanation for the delay in filing her Application as this letter does not address the period from 2004 to April 2009, when she filed her Application and does not address how she could pursue other legal rights and not file her Application.

40Further, the medical report from Dr. Kakar that the applicant submitted to explain the delay in filing her Application also does not assist me. The applicant testified that she saw Dr. Kakar in 2002 and “stopped seeing him” until 2010 when she met with him to obtain this medical report. Accordingly, his report is based upon observations made in 2002 and then in 2010. It does not address the period between 2002 and 2010. More importantly, it does not provide any justification as to why the applicant was able to pursue other civil actions initially with legal representation and, at least in 2009 without any legal representation, but not be able to commence an application against the respondents for alleged discrimination in the workplace. Dr. Kakar’s medical report does not support the position that the applicant was disabled to the extent that she was not able to function, a factor the Tribunal found to be relevant in Imrie-Howlett, supra, and Keyereme v. Windsor Police Service, 2009 HRTO 1850.

41Efforts to pursue one’s rights without filing an application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508 and Gagne v. Maximum Mining, 2010 HRTO 689.

42The evidence is clear that the applicant pursued legal rights pertaining to her MVA from initiating legal proceedings in 2001 to settling them during a trial in March 2009. During her testimony, she named four lawyers who represented her up to the point that she represented herself. While the court actions were active, the applicant, either directly or through her counsel, made inquiries to the respondent hospital to obtain her employment documentation. The applicant did not provide an explanation as to why she, or her counsel, was able to communicate with the respondent hospital for this information, yet not pursue her human rights issues.

43The applicant submits that she did not understand the releases that she was signing to settle in her civil actions and that her daughter, who was her power of attorney, explained them to her and she signed. Two releases were entered as exhibits during the hearing – one pertaining to the applicant’s civil action against two defendants and the other pertaining to her civil action against an insurance company. Both are signed by the applicant and one (the release against two defendants) is also signed by “Melanie Brooks, Power of Attorney”. The release against the insurance company is witnessed, it appears, by Melanie Brooks, but contains no reference to a power of attorney. Both releases contain language stating that the applicant has read the release and understands its terms.

44During her cross-examination, the applicant admitted that she understood that by signing the releases she, and one of her lawyers, would receive a specified amount of money in exchange for signing the releases. Although the applicant, like most people who are not legally trained, may not have understood all the legal minutiae, she did comprehend the gist of the release, even if she was assisted by her daughter. See Douse v. Hallmark Canada, 2009 HRTO 1254. Accordingly, I do not accept her position that she did not understand the release to provide a reasonable explanation for the delay in filing her Application.

45The Tribunal has held that if an applicant fails to demonstrate that the delay was incurred in good faith it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579, Dean v. Brantford Office Machines, 2010 HRTO 385, and Gagne, supra.

46Accordingly, the Application is dismissed.