Jeffrey Forde v. Avon Maitland District School Board and Geoffrey Williams, 2011 HRTO 1664

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Forde

Applicant

-and-

Avon Maitland District School Board and Geoffrey Williams

Respondents

DECISION

Adjudicator: Alison Renton

Date: September 8, 2011

Citation: 2011 HRTO 1664

Indexed as: Forde v. Avon Maitland District School Board

APPEARANCES

Jeffrey Forde, Applicant ) Self-represented )

Avon Maitland District School Board ) Kathryn Bird, Counsel and Geoffrey Williams, Respondents )

1The applicant filed a Contravention of Settlement Application with the Tribunal under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 3, 2010, in relation to a settlement that the applicant entered into with the respondents on April 16, 2009 (“the settlement”). The applicant identifies “31/10/2010” as being the date of the last alleged contravention or breach of the settlement and asserts that his medical condition prevented him from filing the Application earlier.

2The applicant, a former teacher with the respondent school board, alleges that para. 2 of the settlement was breached. Para. 2 states:

Effective September 1, 2009, the Board shall place Mr Forde on a paid leave of absence through to September 16, 2009 inclusive.

3The respondents filed a Response to an Application for Contravention of Settlement (Form 19) (“the Response”). The respondents submit that the Application was filed beyond six months of the alleged contravention, as required by section 45.9 of the Code. Further, they submit that the applicant has not demonstrated that the delay in filing was incurred in good faith. The respondents submit that there has been no breach of the settlement as the applicant was paid the amount specified in para. 2.

4The Tribunal issued an Interim Decision, 2010 HRTO 2367, in which it stated that a conference call hearing would be scheduled on the following issues:

a) Is the applicant’s delay in filing his Application made in good faith as required by section 45.9(4) and is there no substantial prejudice that will result to any person affected by the delay?

b) Is there a breach of para. 2 of the Application?

5The Interim Decision also directed any party who wished to rely upon facts, case law or documents not already before the Tribunal to deliver those to the other party and file them with the Tribunal within 14 days of the date of the scheduled conference call. The Tribunal also noted, at para. 6, that since the applicant appeared to be taking the position that his medical condition prevented him from filing the Application within the six-month time limit, the Tribunal would expect that he deliver and file medical documentation in support of this position.

6The conference call hearing was held on February 24, 2011. Prior to the conference call hearing, the applicant submitted documentation and letters dated February 17, 2011 (re-sent on February 24, 2011), to which copies of medical documentation were attached, and two letters dated February 23, 2011. The first February 23, 2011 letter was a request to add a new personal respondent, a lawyer, Raj Anand, as a party to the Application. The second letter dated February 23, 2011, responded to the respondents’ February 23, 2011 letter in which the respondents object to the introduction of the materials filed by the applicant on February 23, 2011. At the conference call hearing, the Tribunal also heard submissions from the parties on whether the material that the applicant filed in February 2011 before the conference call hearing should be considered by the Tribunal.

7During the conference call hearing, several issues arose including the applicant’s rate of pay and whether he was governed by the terms of the teachers’ collective agreement. The Tribunal directed that a copy of the collective agreement and excerpts, if any, from the Education Act, R.S.O. 1990, c. E.2, about statutory holidays be provided and established a timetable for the parties to provide additional material and submissions. The respondents submitted materials dated March 1 and 31, 2011, and the applicant submitted material dated March 14, April 1 and May 10, 2011.

The Applicant’s position

8The applicant submits that the material that he filed in February 2011 before the conference call hearing ought to be considered by the Tribunal because it was filed in a timely manner. It was filed within 14 days as required by the Interim Decision, the respondents received it and had an opportunity to comment on it. He submits that the respondents are attempting to delay the proceedings with their objections to his February 2011 material.

9In his February 23, 2011 letter, the applicant sought to add Mr. Anand as a party to the Application. The applicant acknowledged that Mr. Anand was not provided with a copy of his request because the applicant understood that the Tribunal had to first determine whether Mr. Anand would be added as a personal respondent before Mr. Anand received a copy of the Application for response. The applicant alleges that within the six-month limitation period for filing the Application, a conflict arose between Mr. Anand’s private practice during which he was representing a respondent and his involvement with the Human Rights Legal Support Centre (“HRLSC”), which prevented the applicant from being represented in this and other Tribunal applications by the HRLSC. The applicant submits that the HRLSC’s denial of services is contrary to the Code as he is entitled to have representation from them. He had representation from the Ontario Human Rights Commission in his complaint that resulted in the settlement. The applicant reiterated his concern that he is without legal or union representation in his March 14, 2011 submissions.

10The applicant submits that initially, and within the six-month limitation period, he received assistance from the HRLSC on planning his applications and then provided it over 500 documents. The HRLSC was in the process of reviewing those documents when Mr. Anand’s conflict was detected. This contributed to the applicant’s medical condition. As the applicant does not have representation from the union, the applicant is forced to represent himself to his disadvantage, and this, along with the applicant’s medical condition, contributed to the applicant’s delay in filing his Application.

11In his November 1, 2010 letter submitted to the Tribunal along with his Application, the applicant states that he “recently” obtained a “pro bono lawyer” to assist him in his Applications. He submits:

Now as I attempt to address the human rights violations committed by my Union [in another Tribunal file] I have again been shocked and my medical condition aggravated by the complications associated in filing and getting help to file a claim of Reprisal and Contravention of Settlement. Mr. Raj Annand’s conflict of interest and my medical incapacity delayed these two applications attached; A Contravention of Settlement Form 18, and an Application of Reprisal by the Respondent after Settlement. The Human Rights Legal Resource Centre [sic] refused to assist me in making those applications after Mr. Annand’s conflict of interest was identified. Recently I obtained a Pro Bono Lawyer to assist me.

These comments are being provided to you as I have been directed to do so by legal council I recently consulted…. If nothing else, please accept the two applications attached and my explanation for any slight delay in filing which may be found.

12The applicant also submits that his medical condition prevented him from filing his Application within the six-month time period required by section 45.9 of the Code. His medical condition was at the heart of the issues raised in his complaint which resulted in the settlement. The respondents knew about his medical conditions. The applicant described in some detail the circumstances that occurred on the day that the settlement was entered into and the reasons why he entered into the settlement. Attached to his March 14, 2011 submissions was a letter signed by Lois Forde, which sets out her observations about the applicant’s mental health condition on the day that the settlement took place.

13In October and November 2009, the applicant communicated with someone from the respondent school board about this and other terms of the settlement (which are the subject of another application before the Tribunal), and issues pertaining to his daughter’s education. He submits that it took all his medical capacity to approach the respondent about these other issues. When the respondent responded in writing in November 2009 about those other issues, the applicant submits that this was a “set back” and a “reprisal”. He became physically ill and that, along with other medical symptoms, prevented him from filing his Application. He is, at times, “ok” except when dealing with issues pertaining to his former employment.

14The applicant referred to the medical documentation that he submitted to the Tribunal prior to the conference call hearing in support of his position that his medical condition prevented him from filing his Application in a timely manner. He also provided details about his current medical condition.

15With respect to his allegation that para. 2 of the settlement was breached, the applicant submits he was paid for 11 days in September 2009. Initially, he submitted that under para. 2 he was entitled to 12 days of pay, only excluding weekends. Upon questioning from the Tribunal about the number, the applicant then stated the leave of absence was supposed to be for 16 days and that he should have received an additional 5 days of pay, including weekends and Labour Day. Attached to his March 14, 2011 submissions were copies of documents showing that the applicant was paid for 11 days in September 2009.

16The applicant submits that he spoke with a representative of the respondent school board before October 31, 2009, who told him that he would be paid all his entitlements by October 31, 2009. Later, that representative told him that he would not be paid for the September 2009 Labour Day since teachers are not paid for that day under the terms of their collective agreement. The applicant notes that the settlement does not reference the collective agreement, he has no authority to alter the terms of the collective agreement, and his original complaint was about the collective agreement not being followed. In addition, he was not represented by the union on the date the settlement was signed, and the terms of the settlement include provisions, such as continuing his sick leave credits which had already been exhausted, are not otherwise provided by the collective agreement.

17Finally, the applicant submits that at the time of signing the settlement, he was not an active teacher and should be considered as a non-classroom teacher with a per diem rate outside the terms of the collective agreement.

18On May 10, 2011, the applicant provided an excerpt from what appears to be a book entitled the Consolidated Education Act and Regulations 2003, sections of the Education Act, an excerpt of a policy/program about students with learning disabilities and special education organizational units, and excerpts from the Education Accountability Act, 2000, S.O. 2000, c. 11.

The Respondents’ position

19The respondents request that the Tribunal not consider the applicant’s materials dated February 17 and 23, 2011, as they were not filed pursuant to the time frame required by the Interim Decision. Further, the respondents did not receive the February 17 material until February 22 (and the February 23 material the day before the conference call hearing), and are prejudiced in their ability to review the material and respond appropriately with case law, or an expert, or otherwise. The respondents submitted that they should be given additional time to respond to the applicant’s new materials.

20With respect to the issue of delay, the respondents submit that they do not dispute that the applicant has a disability. However, they submit that the medical documentation filed by the applicant does not support his assertion that he was unable to file his Application within the mandatory time period from September 2009 to March 2010. Some of the medical documentation, such as the December 1, 2009 material in relation to the applicant’s long term disability claim by a disability counsellor, is not relevant to the issue of delay before the Tribunal; the material that pre-dates September 2009 and post-dates the relevant time period of when the applicant filed his Application is also not relevant; and documentation addressing the applicant’s inability to work in his previous employment is not relevant to the issue of delay.

21With respect to Dr. Percival’s January 24, 2011 letter, the respondent submits that this is the most relevant medical documentation the applicant provided as it addresses incapacity. However, it addresses incapacity from approximately September 2010, which is subsequent to the applicant filing his Application, and does not address whether the applicant was incapacitated from October 2009 to March 2010.

22The respondents submit that they do not know the purpose of Lois Forde’s letter, submitted along with the applicant’s March 14, 2011 materials, and request that the Tribunal disregard it.

23The respondents submit that the applicant does not have a guaranteed right to legal representation under the Code and note that many applicants are self-represented. The applicant’s assertions that he accessed legal assistance during the relevant time period and contacted representatives of the respondent school board demonstrates, according to the respondents, that the applicant was not incapacitated to the point that he was unable to pursue his rights. In addition, the respondents submit in their March 31, 2011 submissions, the applicant was able to pursue appeal rights under the Education Act with respect to his daughter’s needs in fall 2009 and filed a separate Application with the Tribunal in fall 2009.

24The respondents’ prejudice is not significant, the respondents submit, but note that the applicant is seeking payment well outside of the school year for an issue that arose during the previous school year.

25The respondents deny that the applicant was a consultant. Instead, he was, the respondents submit, a former teacher and his employment was governed by the terms and conditions of the collective bargaining agreement between the applicant’s union, the Elementary Teachers’ Federation of Ontario, and the respondent school board. The applicant cannot pick and choose which terms of the collective agreement apply to him and if he wanted a superior benefit from that provided in the collective agreement, he could have bargained it. While there is no reference to the collective agreement in the settlement, the respondents note that other terms in the settlement, such as medical and dental benefits, and sick leave credits are premised on the collective agreement entitlements. In their March 31, 2011 submissions, the respondents submit that the applicant has not provided any evidence of an alternate contract of employment.

26The leave of absence from September 1 to 16, 2009, inclusive, referenced in para. 2 of the settlement, is based upon the applicant’s rate of pay as a teacher, which, under Article 10.02(b) of the collective agreement, is based upon school days. Ontario Regulation 304 of the Education Act states that school days do not include school holidays. Section 2 (3.1) of the Regulation states that school holidays includes Saturdays, Sundays and Labour Day. As a result, the applicant was entitled to be paid for 11 days under para. 2 of the settlement, and he was paid for 11 days. Accordingly, the respondents submit, there is no breach of the settlement.

Analysis

Request to add new party

27During the conference call hearing, the Tribunal dismissed the applicant’s request to add a new personal respondent as a party to the Application and stated that reasons would be provided in the Decision.

28Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. (See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14.)

29In this case, the day before the conference call hearing, the applicant sought to add a new personal respondent, Raj Anand, whose alleged conflict, the applicant alleges, prevented him from legal representation from the HRLSC. I find that the allegations against Mr. Anand, while they purport to address some of the applicant’s delay in filing his Application, do not address the issue of whether or not para. 2 of the settlement was breached. Further, it does not appear that there are any Code grounds raised against Mr. Anand. Accordingly, during the conference call hearing I determined that it would not be fair to the respondents or the Tribunal’s process for a new personal respondent, who was not otherwise involved in this proceeding, to be added as a party at such a late stage in the Tribunal’s proceedings.

Delay in Filing the Application

30Section 45.9(3) and (4) of the Code states:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) 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.

31Although this case is being determined under section 45.9 of the Code and not under section 34(2), the language of these sections is identical with the exception of the length of time available to file a breach of settlement application – six months under section 45.9 versus twelve months under section 34(2). I find that the six-month limitation period under section 45.9 is mandatory and is consistent with the Code’s objective that these matters should be dealt with expeditiously. Thus, the Code requires that an individual act with due diligence and file his or her application alleging a contravention of a settlement within six months of the contravention or last in a series of contraventions.

32While the Application identifies “31/10/2010” as being the date of the last alleged contravention or breach of the settlement, I cannot find any information or allegation in the Application that relates to October 31, 2010. Para. 5 of the settlement pertains to a term that is not the subject of this Application, and requires a payment be made to the applicant by October 31, 2009. However, this date is a year before the date listed in the Application and does not in itself relate to any alleged contravention. Accordingly, I do not find “31/10/2010” to be a relevant date in this Application.

33There is no time period within which para. 2 of the settlement is to be paid. Accordingly, I find that the six-month limitation period commences at the end of September 17, 2009, as that was the end of the applicant’s leave of absence. Therefore, the applicant had until March 17, 2010, to file his Application. He filed it in November 2010, some eight months after the end of the limitation period, and therefore the applicant is required to prove that his delay from March 2010 to November 2010 in filing his Application was incurred in good faith.

34The Tribunal has the discretion to waive the mandatory limitation period where it finds that the applicant’s delay in filing the application was incurred in good faith. In 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. 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.

35Efforts 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. I find that this also applies to Applications being filed under section 45.9 of the Code.

36I do not find that the letter written by Lois Forde to be relevant to the issue of delay. The letter contains Ms. Forde’s observations about the mental capacity of the applicant on the date the settlement was entered into as well as the reasons he entered into the settlement.

37The evidence is that the applicant communicated with representatives of the respondent school board in the fall of 2009 about other terms of the settlement. The applicant also asserts that within the six-month limitation period he contacted the HRLSC about filing his Application, and it was within this time period that Mr. Anand’s alleged conflict was detected. Clearly, he was attempting to assert his rights about this and other issues with the respondent school board and its representatives, as well as attempting to obtain legal representation.

38The applicant asserts that his dealings with representatives of the respondent school board about the subject matter of this Application and other issues including another the subject of another application and issues pertaining to his daughter, as well as his dealings with the HRLSC and Mr. Anand’s conflict caused a setback to his medical condition such that he could not file his Application in a timely manner. In that regard, he filed medical documentation from different health care providers from May 1, 2003 until January 24, 2011, various communications between him and the respondent school board from May 12, 2008 until December 1, 2009, and communication from Human Resources Development Canada from January 2011.

39While 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.

40Despite the respondent’s submission that the Tribunal ought not consider the applicant’s documentation that was submitted before the conference call hearing, I have considered the materials that the applicant submitted on February 17 (and again on February 24) and February 23, 2011. The Interim Decision required a party who wished to rely upon any facts, case law or documents that were not already before the Tribunal to deliver them to the other party and file them with the Tribunal “within 14 days of the date of the scheduled conference call hearing”. In hindsight, the Tribunal ought to have used another word than “within”, such as “before” to convey that material was to be filed well in advance of the conference call hearing. Given that the respondents’ counsel did review the material and make submissions on it at the conference call hearing, I find that the respondents are not prejudiced with the applicant’s February 2011 material being considered by the Tribunal.

41I do not find that the medical documentation submitted by the applicant and dated between May 1, 2003 to June 2, 2009, to be relevant to the issue of the applicant’s delay in filing his Application within the period October 2009 to March 2010 as this documentation pre-dates October 2009.

42However, I do find that the Disability Tax Credit Certificate (“disability certificate”) completed by Dr. Percival on June 1, 2010, and her January 24, 2011 letters to be relevant to the issue of delay and that they support the applicant’s position that his medical condition contributed to the delay in filing out his Application. On this basis, I find that they demonstrate that the applicant’s delay was incurred in good faith.

43In excerpts of the disability certificate, Dr. Percival indicated 2008 as the date the “cumulative effect” began and marked off that the applicant’s medical condition was equivalent to a “marked restriction” in daily living. “Marked restriction” is defined on the certificate as “patient unable to perform at least one of the basic activities of daily living”, or takes patient an “inordinate amount of time to perform at least one of the basic activities of daily living”. Dr. Percival noted that the condition had lasted or was expected to last for a continuous period of at least 12 months. In describing the effects of impairment, Dr. Percival wrote about the applicant having significant anxiety, being unable to go out in public, having panic attacks, and being unable to leave his bedroom for days. She writes that his condition “may improve over next 1 – 2 years”. The disability certificate, noting that the cumulative effect date was 2008, and which was completed in June 2010 covers the period from October 2009 to March 2010.

44In her January 24, 2011 letter, Dr. Percival covers the period from June 2010 to the date of her letter when she references his medical condition “…in the last six months”. She notes that he tried some retraining, and that the last attempt “2009/10 did not get off the ground”. She opines that she does not have “a positive prognosis” for the applicant. She writes:

However, in the last six months he’s been having increasing episodes of anxiety again, and having increasing difficulty coping. Part of what I believe has brought this on is the fact that the legal battles regarding his long term disability are on-going and he’s been under considerable financial stress as these battles have been on-going. Second thing, which I fear flared this, was his returning to school to attempt a new career as a pharmacy tech and I think this stress on top of the legal battles exacerbated things. When I saw him in September he was having significant panic and anxiety, having trouble sleeping, significant difficulty concentrating and so we needed to defer his pharmacy course.

45In another letter dated January 24, 2011, Dr. Percival writes, “He suffers from a debilitating stress related condition that significantly affects the way he copes with stress, the way he functions on a day-to-day basis….”.

46Accordingly, based upon this medical documentation, I do accept that the applicant’s medical condition was so debilitating that it prevented him from pursing his rights under the Code. Having found that the delay was incurred in good faith, and given the respondent’s concession that there was no significant prejudice, the Application is not dismissed for delay and may proceed accordingly.

Was There a Breach of The Settlement?

47As set out in para. 2 above, para. 2 of the settlement required the respondent school board to place the applicant on a paid leave of absence effective September 1, 2009, through to September 16, 2009, inclusive. The applicant initially submitted that this required him to be paid 12 days in September 2009, that he received payment for 11 days, and that he is entitled to be paid for one additional day - Labour Day. During the conference call hearing, the applicant sought payment for five additional days – Labour Day and weekends. It is not disputed that the applicant received payment for 11 days in September 2009.

48In my opinion, the settlement was not breached by the respondents. Para. 2 of the settlement refers to a “paid leave of absence” and the applicant had been employed by the respondent school board as a teacher. Accordingly, the terms of the teachers’ collective agreement with the respondent school board and the provisions of the Education Act are applicable to understanding what “paid leave of absence” means.

49Article 10.2(b) of the collective agreement states:

A teacher will be paid on the grid salary in the proportion that the total number of school days for which the teacher performed duties bears to the total number of school days in the school year, unless otherwise expressly agreed to between the Board and the Union Local.

50The grid salaries are set out in Article 10.03(a) and show they are, for 2009, effective September 1, 2009.

51Regulation 304 of the Education Act, R.R.O. 1990, defines “school day” in section 1(1) as: “means a day that is within a school year and is not a school holiday”. Section 2(1) states, “Subject to section 5 [which is not applicable here], the school year shall commence on or after the 1^st day of September and end ….”. Section 2(4) specifically identifies school holidays, which includes “every Saturday and Sunday) (section 2(4)1) and “Labour Day” (section 2(4)3).

52I find that the applicant is not entitled to be paid for Labour Day or any Saturday or Sunday that fell within the period September 1 to 16, 2009. He was entitled to be paid for 11 days and was in fact paid for 11 days.

53Accordingly, there has been no breach of the settlement and the Application is dismissed.