Bell v. Upper Grand District School Board, 2011 HRTO 2255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda May Bell

Applicant

-and-

Upper Grand District School Board, Tom Dagg, Cheryl Mosseau, Deb Magahay, Erin Psutka, Ian Phillips, Mac Howson, Bill McLellan, Stephen Magee, Martha Rogers, Bonnie Evans and Geoff Little

Respondents

DECISION

Adjudicator: Naomi Overend

Date: December 16, 2011

Citation: 2011 HRTO 2255

Indexed as: Bell v. Upper Grand District School Board

1The applicant filed an Application alleging discrimination in employment on the basis of disability, sex and reprisal contrary to Human Rights Code R.S.O. 1990, c. H.19, as amended, (the “Code”). She names 11 individual respondents as well as her employer, the Upper Grand District School Board (the “Board”).

2In her Application, the applicant indicates in section 7 that the date of the last event was “fall 2003 into spring 2004 when sent home.” Her narrative in section 8 (and the remaining portions of her Application) is largely devoid of any dates, although there is the occasional reference to matters that appear to have taken place as late as 2009.

3The Tribunal sent the applicant a Notice of Intent to Dismiss for delay on August 12, 2011 and the applicant responded to that Notice with written submissions received by the Tribunal on September 15, 2011. The submissions do not assist the Tribunal in ascertaining the relevant dates of the allegations.

4The Tribunal then issued a Case Assessment Direction, dated September 28, 2011, in which it requested submissions from the Board (but not the individual respondents) on the issue of delay by October 25, 2011. The applicant was given a further opportunity to file submissions, if desired, in response to the Board’s submissions.

5The Board requested an extension until November 4, 2011, which was granted. On November 4, 2011, the Board delivered its written submissions to the Tribunal via email, on which the applicant was copied. The applicant was to file her written submissions by November 11, 2011, but did not do so and has filed nothing since that deadline.

6The Board submits:

…it is clear on the applicant’s own view of her allegations that the application is essentially about events that occurred between 1999 and 2004.

Even if one assumes that there might be some reference to events during the 08/09 school year, the application was still filed more than 24 months after the end of this school year in June, 2009.

7An application that is filed more than one year past the last incident of alleged discriminatory conduct may be barred by virtue of s. 34, which states in part:

(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.

8As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.

9Although the applicant did not file submissions in response to the Board’s submissions, she did file earlier submissions in response to the Notice of Intent to Dismiss in which she states:

My recovery has been ongoing and until this year with the help of my Personal Support Workers from the Canadian Mental Health Association, I was unable to accept my situation nor request help. Due to my anxiety and trauma background, it took me some time to accept the fact that my human rights have been violated and with the support of friends, as I have no family, I have pursued this claim.

10The Board asserts in its submissions (to which the applicant has provided no response) that “the applicant was capable at various times while she was on sick leave of actively pursuing complex contested claims and appeals for LTD and other work-related benefits, contrary to her assertion of on-going incapacity to pursue legal claims.”

11The applicant has not filed medical evidence from any health practitioner, nor has she requested an extension of time in order to do so. Other than bald and vague assertions about her mental health, she has provided no explanation for why she was able to pursue her LTD claim(s), but not a human rights application.

12Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice, although I note that the Board quite rightfully points out that prejudice can be presumed with respect to the delays concerning the events that occurred in the period from 1999-2004 (some seven to 12 years prior to the filing of the Application).

13The Application is dismissed.