Kerry v. City of Ottawa, 2011 HRTO 1940

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Kerry

Applicant

-and-

City of Ottawa

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: October 26, 2011

Citation: 2011 HRTO 1940

Indexed as: Kerry v. City of Ottawa

APPEARANCES

Lisa Kerry, Applicant ) Russell McCrimmon, counsel

City of Ottawa, Respondent ) Margaret-Marie Steele, counsel

Ottawa Carleton Public Employees’ Union ) Lori Harreman, counsel

Local 503 )

1The applicant filed an Application on April 20, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the applicant was discriminated against in employment on the basis of disability and marital status.

2On September 28, 2011, the Tribunal held a hearing in order to address preliminary objections to the Application proceeding. At the hearing, counsel for the parties presented oral submissions regarding whether or not the Application was barred because it is untimely pursuant to section 34 of the Code.

3For the reasons that follow, the Application is dismissed. I find that the Application was filed more than one year after the last alleged incident of discrimination or last incident in an alleged series. The applicant has not established that the delay was incurred in good faith within the meaning of the Code.

OVERVIEW

4The Application alleges that:

a. from January 2008 to April 21, 2009, the respondent failed to accommodate the applicant’s disability because it did not provide her with suitable work in a timely fashion;

b. in January 2008, the respondent did not allow the applicant to return to her substantive position, even though the applicant had provided appropriate medical information;

c. in 2005, the respondent placed her on an attendance improvement program without regard for her disability-related needs.

5At the outset of the hearing, the applicant withdrew the allegations of discrimination regarding issue c, the respondent’s attendance management program.

6The Application also contained a number of allegations against the Ottawa Carleton Public Employees’ Union, Local 503 (“Union”). Part way through the September 28, 2011 hearing, the applicant advised the Tribunal that that she wished to withdraw the Application against the Union. The Application has been withdrawn against the Union and the style of cause has been amended accordingly.

7In responding to the Application, the respondent and the Union filed written submissions arguing that the Application cannot proceed because, among other things, it was filed outside the limitation period, the applicant signed a release regarding the subject-matter of the Application or part of the Application, and it would constitute an abuse of process to allow the Application to proceed in the circumstances.

8On September 2, 2010, the Tribunal issued a Decision dismissing the Application as abandoned: 2010 HRTO 1815. On September 20, 2010, the Tribunal reconsidered its Decision and held that the Application should proceed. In the Reconsideration Decision, the Tribunal found that the Application had not been abandoned and that the applicant had, in fact, filed submissions as directed by the Tribunal: 2010 HRTO 1896.

9In the Reconsideration Decision, the Tribunal directed that an in-person hearing be scheduled to address preliminary issues. The Reconsideration Decision directed the parties to exchange and file with the Tribunal any additional facts or documents upon which they intend to rely at this hearing. In the applicant’s case, the Tribunal ordered that this be done by October 20, 2010.

10Counsel for the applicant filed a book of documents and a book of authorities on September 22, 2011. This is almost a year beyond the timeline set out in the Reconsideration Decision. The Union and the respondent raised concerns regarding the late filing of the applicant’s documents and, among other things, they asked that the Tribunal determine the preliminary issues without considering these documents. In the alternative, they requested an adjournment of the hearing.

11At the outset of the hearing, following discussions with the Tribunal, all counsel agreed that, notwithstanding the late filing of documents and the objections raised by the Union and the respondent, it would be appropriate for the Tribunal to hear legal argument from the parties regarding the timeliness of the Application.

12With the consent of the parties, the Tribunal admitted into evidence two documents from the applicant’s book of documents. Neither party sought to rely on any further documents.

THE FACTS

13The applicant is a long-time employee of the respondent. She has some mental health conditions as a result of which she has had to take a number of medical leaves from work.

14From January 2008 to April 20, 2009, the applicant was not actively employed by the respondent. She alleges that, although she was fit to return to work as of January 2008, the respondent failed to accommodate her by providing suitable work.

15In June 2008, the applicant and the respondent entered into minutes of settlement in which they acknowledge that, based on the medical information provided to date, the respondent had met its duty to accommodate the applicant. In the minutes of settlement, the parties agreed that the applicant would be placed on a priority placement list and that she would be considered for full-time (four days per week) and part-time positions at Constellation Drive. They agreed that the applicant would be considered for positions within the applicant’s medical restrictions and for which she was suitably qualified.

16The minutes include release language that specifically references the respondent’s duties under the Code. The respondent argues that the release bars the Application from proceeding, at least in part. The applicant argues that the release was signed under duress and that it should not prevent her from proceeding with the Application. In light of my conclusions regarding the timeliness of the Application, it is not necessary for me to determine whether the minutes of settlement constitute a bar to proceeding.

17The applicant alleges that, following the signing of the June 2008 minutes, the respondent continued to discriminate against her. She states that the respondent failed to provide suitable work in a timely fashion and, moreover, that it failed to search for suitable work with appropriate diligence. The applicant has not identified specific positions she believes ought to have been offered to her. Instead, she argues the respondent’s failure to provide suitable work until April 21, 2009 evidences its lack of diligence and its failure to pursue or consider opportunities.

18In early April, 2009, the respondent offered the applicant a position that it believed was suitable and met the criteria agreed-to in the minutes of settlement. The parties negotiated some of the terms and conditions of the applicant’s return to work. Following this, on April 16, 2009, the respondent sent a formal letter of offer to the applicant.

19On April 21, 2009, the applicant returned to work with the respondent. The parties agree that the applicant has been suitably accommodated in the workplace since April 21, 2009.

20On April 20, 2010, the applicant filed this Application.

ANALYSIS

21Section 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.

22Pursuant 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.

23The initial onus is on the applicant to show that any delay in filing the Application was incurred in good faith. If she is able to establish good faith, the onus shifts to the respondent to show that it will suffer substantial prejudice as a result of the delay in filing the Application.

Was the Application filed within one year of the last alleged incident of discrimination?

24To determine this issue, I must first establish the date of the last alleged incident of discrimination.

25The applicant urges me to conclude that the limitation period begins as of April 21, 2009. She argues that the Application, which was filed on April 20, 2010, is timely. She states that the respondent did not cease to discriminate against her until April 21, 2009, when she commenced suitable work. Until the applicant actually entered the workplace on April 21, 2009 and could determine that the work was appropriate, she states that the discrimination was ongoing.

26I reject this argument for two reasons. First, the respondent’s duty to accommodate the applicant requires it to consider her for positions that are suitable in light of her disability. It does not necessarily follow (as the applicant maintains) that because no suitable work was offered, she was discriminated against for the entire period between January 2008 and April 21, 2009.

27To succeed on the merits of the Application, the applicant would have had to (for example) identify available work that might have been suitable and for which she was not considered. I appreciate that the Application is at its early stages and that the parties have not exchanged all arguably relevant documents. However, even in light of the early stage of the proceeding, the applicant’s arguments are highly speculative. She argues that discrimination follows from a failure to provide suitable work and urges me to conclude from the length of time it took to find a position that the respondent failed in its Code-related duties to her. To draw this inference without evidence of a particular act or omission on the part of the respondent is inconsistent with the Tribunal’s approach to the duty to accommodate and its approach to determining timeliness under section 34 of the Code: see, for example, Degen v. Toronto (City), 2011 HRTO 319.

28Second, the parties agree that they entered into discussions about the applicant’s current position in early April 2009 and that, by April 16, the respondent made a firm offer of suitable employment to the applicant. I find that, by at least April 16, 2009, the respondent offered suitable work to the applicant and thereby met its duty to accommodate her under the Code.

29The applicant argues that she did not accept the offer of employment until she entered the workplace on April 21, 2009. She states that there was no consideration in terms of the employment contract until she actually commenced work and that, accordingly, the limitation period begins as of that date.

30This contractual approach to the employment offer does not, in my view, assist the applicant. By April 16, 2009, the parties agree that the respondent had offered the applicant suitable work. There is no contention that, between April 16 and April 21, when the applicant returned to work, the respondent ought to have pursued or offered other opportunities for the applicant.

31Generally speaking, the duty to accommodate is fulfilled when the respondent offers suitable employment to the applicant. To accept the applicant’s argument that accommodation does not occur until the employee returns to the workplace would lead to results that are incongruous with the Tribunal’s general approach to accommodation.

32Consider, for example, a situation where an employer is found to have offered suitable work, but that work is declined by the employee. To apply the applicant’s analysis, the respondent would nevertheless have failed in its duty to accommodate up to the point where the employee eventually returns to work, if at all. A respondent cannot be required to pay damages and lost income for a period of time after which it had offered suitable work and has done its share to accommodate under the Code.

33As I have indicated, the applicant’s allegations regarding the nature of the respondent’s alleged failure to accommodate her disability in a timely manner are vague; they do not contain specifics regarding what the respondent ought to have done differently or when the alleged breaches occurred. Consequently, it is difficult to establish the exact date of the last alleged incident of discrimination within the series. I am satisfied, however, that the respondent met its duty to accommodate the applicant by at least April 16 2009 and that the limitation period begins to run at some point prior to this date.

34For the above reasons, I find that the last alleged incident of discrimination in the series of events occurred before April 16, 2009. The Application was filed more than one year later, on April 20, 2010. As a result, I must consider whether the delay in filing the Application was in good faith, within the meaning of the Code.

Was the delay in good faith?

35The applicant argues that, in the circumstances, the delay was in good faith because:

a. the delay itself is very short, only a matter of a few days;

b. the applicant’s disability was a factor in the late filing of the Application;

c. the applicant delayed in filing the Application because she feared reprisal; and

d. the applicant was awaiting the outcome of other proceedings (her request that the Union file a grievance) before filing an application under the Code.

36In determining the issue of good faith, the Tribunal has considered factors such as the length of the delay, 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

37First, as I have indicated, it is difficult to identify the last incident of alleged discrimination in this case. It occurred at some point before April 16, 2009. For the purposes of considering the applicant’s arguments regarding good faith, I will assume (without finding) that the delay was short. The fact that the delay may have been only a few days favours the applicant’s position.

38Second, while I certainly accept that the applicant was contending with significant mental health issues, there is no basis for me to conclude that these directly prevented her from filing an application in a timely manner.

39The applicant was fit to return to work from January 2008; she did, in fact, return to work in April 2009. Between January 2008 and April 2010, when she filed the Application, the applicant was able to raise allegations in other venues. She requested that the Union file a grievance on her behalf. In addition, although she did not begin a proceeding in this regard, she communicated directly with the employer in August of 2008 and indicated that a position offered to her at a significantly lower pay scale “is tantamount to constructive dismissal”.

40Counsel for the applicant argued that pursuing a grievance is different from filing a human rights application. He stated that the applicant could have counted on the Union’s carriage and support of the grievance proceeding and that is “on her own” in filing the Application. He argues that while she felt she could pursue a grievance, the applicant did not feel able to initiate a human rights proceeding.

41While I accept that there are some differences in the nature of the two proceedings, I cannot find that the applicant’s delay was in good faith on this basis. In this case, the applicant was assisted by a friend from the outset of the human rights proceeding. In advance of the hearing, she retained counsel. As I have mentioned, in August of 2008, the applicant communicated directly with the employer and raised concerns about a constructive dismissal. I cannot accept that any difference in the level of support available to the applicant in the grievance and the human rights proceedings amounts to a good faith reason for the delay in the circumstances.

42During the course of oral submissions, counsel for the applicant mentioned that documents could be obtained to show that the applicant’s mental health condition impacted her ability to file an application in a timely manner. When asked, however, counsel indicated that he did not wish to adjourn the proceedings in order to obtain such documents. He argued that they are not necessary. He urged the Tribunal to conclude from the serious and ongoing nature of the applicant’s mental health condition that her disability directly impacted her ability to file the Application during the limitation period.

43Counsel for the respondent objected to any such inference. She argued that, to make this assumption is to apply stereotypes to persons with mental health conditions, contrary to the spirit of the Code. She argued further that persons with mental disabilities regularly file timely applications and that, in order to demonstrate good faith, the applicant has the onus of establishing a direct link between her disability and the late filing of the Application.

44I agree. It is inappropriate to assume that a person with a mental health condition is unable, solely by virtue of that condition, to initiate a timely application. The applicant bears the onus of establishing that her disability directly impacted her ability to comply with the limitation period. She has not met that onus here. There is no basis for me to conclude that her disability was a factor in the late filing of the Application, particularly given that it did not impact her ability to take steps to pursue her rights in other venues.

45Third, the applicant argued that she delayed in filing the Application because she feared reprisal. The applicant cites a letter from the respondent, dated August 21, 2008, which she received in response to her email referencing constructive dismissal. The applicant states that this response caused her to fear reprisals.

46The letter from the respondent sets out steps taken following the minutes of settlement, it states that the applicant’s alleged lack of participation in the accommodation process may have hampered its ability to place her, and it explains the circumstances surrounding the applicant’s consideration of a position in a significantly lower payscale. I make no finding as to whether the letter constitutes a reprisal or gives rise to a reasonable fear of reprisal. Even if the applicant did fear reprisal, I am not satisfied that this constitutes a good faith reason to delay filing an Application.

47For the reasons set out above, I have concluded that the Application was filed at least five days late. It was filed after the applicant had been in the workplace, in a suitable position, for nearly one year. Even if the applicant did fear reprisal, she has provided no explanation for why that fear prevented her from filing the Application five days earlier than she did. In any event, the Code contains express provisions regarding reprisal and fear of reprisal. It is not clear to me that fear of reprisal could, generally, constitute a good faith basis for delay.

48Finally, the applicant states that she delayed filing the Application until the Union advised her that it would not pursue a grievance on her behalf. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991. It was certainly open to the applicant to file a timely Application under the Code while she pursued her rights under the collective agreement.

49For all of these reasons, the applicant has not satisfied me that the delay in filing the Application was in good faith within the meaning of section 34(2) of the Code.

DECISION

50The Application is dismissed pursuant to section 34 of the Code. The Application was filed more than one year after the last alleged incident of discrimination. I am not satisfied that the delay was incurred in good faith.