Nicole Ferrari v. Chrysler Canada Inc., 2011 HRTO 227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicole Ferrari Applicant

-and-

Chrysler Canada Inc. Respondent

DECISION

Adjudicator: Eric Whist Date: February 1, 2011 Citation: 2011 HRTO 227 Indexed as: Ferrari v. Chrysler Canada

WRITTEN SUBMISSIONS

Nicole Ferrari, Applicant ) Self-represented Chrysler Canada Inc., Respondent ) Emmeline Morse, Counsel

1This Application, filed on October 2, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the basis of disability and sex contrary to section 5 of the Code.

2In an Interim Decision dated February 23, 2010, 2010 HRTO 409, the Tribunal dismissed a Request for an Order During Proceedings ("RFOP") made by the respondent to dismiss the Application on the basis that the Application was filed outside the one-year limitation period contained in section 34 of the Code. The Tribunal determined that it could not decide the issue of delay as there was some question about when the applicant's employment was terminated and, therefore, the point in time from which the one-year period commenced. As the parties agreed to mediation of the dispute, the Tribunal would schedule mediation and the respondent could renew its Request if the mediation was not successful.

3A mediation was held on July 13, 2010, that did not settle the dispute between the parties. On November 29, 2010, the respondent filed a further RFOP which again requested that the Application be dismissed on the basis that the Application was filed outside the one-year limitation period set out in section 34 of the Code. The RFOP requested that, in the alternative, the Application be deferred until the resolution of the applicant's civil action brought against the respondent by way of a statement of claim issued on July 22, 2010.

4On December 23, 2010, the Tribunal issued a Case Assessment Direction directing the applicant to respond to the respondent's RFOP.

5On January 19, 2011, the applicant filed her Response to the respondent's RFOP. She submitted that the Application was filed within the required one-year time limit. She further submitted that the Application should be deferred pending the outcome of the civil action but argued that the civil action did not raise allegations of Code violations and therefore the Application was not barred from proceeding by section 34(11) of Code.

6On January 20, 2011, the respondent replied to the applicant's Response reiterating its positions that the Application should be dismissed for delay and that, in the alternative, the Application should be deferred pending the civil action. The respondent also argued that the Application is barred by section 34(11).

DECISION

7The Application is dismissed for delay. The applicant has failed to demonstrate that the Application was filed in a timely fashion or that the delay in filing was incurred in good faith.

BACKGROUND

8The applicant was on long-term disability leave from the respondent beginning in June 2006. The applicant alleges that in July 2008, she was contacted by the respondent's disability benefits carrier and told that, based on information the benefits carrier had on file, she was capable of returning to work and was expected to meet with the respondent to discuss this return. The applicant's long-term disability payments were subsequently terminated on July 31, 2008.

9The applicant met with the respondent on July 30, 2008. It appears that the applicant was told by the respondent that owing to market conditions and the respondent having to reduce its workforce there were no positions the applicant could return to in the organization. The respondent then offered the applicant a separation agreement. The applicant declined this offer and was subsequently put on lay-off as of August 4, 2008.

10Between August 2008 and February 2009, the applicant received benefits and payments from the respondent that included 28 weeks of a reduced salary under an income protection plan and eight weeks of salary in lieu of an eight-week termination notice. The applicant received health benefits coverage from the respondent until April 2009.

THE PARTIES' SUBMISSIONS

11The respondent submits the applicant's Statement of Claim pleads she was laid off/terminated on August 4, 2008. The respondent argues that the applicant's August 4, 2008 lay-off was a permanent one and that this was known to all parties at the time. The respondent submits that this the lay-off was initially categorized as temporary under the provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA") but that it became a termination in accordance with the provisions of section 56 of the ESA. The respondent submits these facts address the Tribunal's earlier concern with identifying the date the applicant's employment was terminated triggering the start of the one-year limitation period.

12The respondents submit that any financial benefits the applicant may have received from it after August 4, 2008, do not constitute "incidents" of discrimination. The respondent relies on Darroch v. King (Township), 2010 HRTO 2268, which states:

For the purposes of section 34(1), an "incident" must be an event upon which an allegation of a violation of the Code is based. … It cannot be said that the events at the meeting were an independent act of discrimination, or part of a "series of incidents" within the meaning of section 34(1).

13The applicant's January 19, 2011 submissions on the issue of delay in their entirety are:

The Application was filed October 2, 2009 and the last incident of discrimination took place on April 15, 2009 the Application was filed in a timely manner and therefore should not be dismissed.

The April 15, 2009 date appears from the Application to be the date when the applicant's health benefits coverage was terminated.

ANALYSIS

14Section 34(1) 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. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 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.

Timeliness of the Application

15I find that the last incident of discrimination to which the Application relates is August 4, 2008, when the applicant was laid off. Accordingly, the Application, filed over one year later in October 2009, does not meet the requirements of section 34(1). The decision of August 4, 2008 to lay the applicant off is clearly an incident of alleged discrimination. The Application alleges that the decision to lay the applicant off was related, in some measure, to her disability and sex and was not a business decision based on a downturn in the economy.

16I do not accept that there were further incidents of discrimination after this date. The Application appears to rely on the idea that the respondent could have returned the applicant to work during the period of August to February 2009 and its failure to do so constitutes further incident(s) of discrimination. Alternatively, the applicant appears to argue in her Response to the RFOP that the respondent's decision in April 2009 to stop her benefits was a further act of discrimination.

17In my view there is no evidence whatsoever that, after August 4, 2008, the respondent considered that the applicant might return to work or that the applicant was entitled to think this. Indeed, the evidence before me is that the applicant accepted and began collecting financial benefits after her lay off on August 4, 2008, including collecting salary under an Income Protection Plan and, importantly, eight weeks of salary in lieu of an eight-week termination notice period. I am satisfied that August 4, 2008 was considered by both parties to be an ending of their employment relationship albeit it would take some time under the ESA for the applicant's temporary lay-off to be considered a termination of her employment. The further fact that the applicant continued to receive benefits after her employment was over is not, in my view, unusual, and the ending of these benefits on April 15, 2009, simply does not, on the information before me, constitute a possible further incident of discrimination.

18As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the mandatory one-year limitation period set out in section 34(1) is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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. The applicant was required to act within one year of the key and indeed last incident of alleged discrimination, the decision to lay her off on August 4, 2008. She did not.

Was the Delay in Filing the Application Incurred in Good Faith

19The Tribunal has held that to in order to establish that a delay in the filing of an application was incurred in good faith under section 34(2) of the Code 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.

20The applicant has provided no explanation for the delay in filing her Application except to say she believed she did file it in a timely fashion. I have no explanation from the applicant for why she delayed filing her Application until October 2, 2009, regardless of when she believed the last incident of discrimination occurred. The applicant has provided no explanations for the timing of her Application even in light of the fact that she knew that the respondent was taking the position before the Tribunal that the last incident of alleged discrimination was August 4, 2008.

21I do not find the fact that the applicant misconstrued the last incident of alleged discrimination to be a reasonable explanation for the delay. The Tribunal has determined that it is not enough for a person who must establish good faith to say he or she was ignorant of their rights under the Code and had no reason to make enquiries about those rights. See Lutz v. Toronto (City), 2009 HRTO 1137. I am of the view that the applicant is essentially relying on a claim that she was ignorant of her rights, and that she did not understand when the final incident of discrimination took place. She ought to have known differently or made timely inquiries as to what her rights under the Code were.

22It is also significant, in my view, that the applicant was clearly aware that the respondent's decision on August 4, 2008, to lay her off was a consequential event. Following this decision, the applicant negotiated a financial package with the respondent with the assistance of legal counsel that, in my view, is based on the ending of the employment relationship. The significant nature of August 4, 2008, only reinforces my view that the applicant ought to have known or made inquiries about pursuing her rights under the Code if she was concerned that she had been treated in a discriminatory manner. The fact that the applicant mistakenly believed there were further incidents of discrimination does not provide a reasonable explanation for not acting, in the circumstances of this case, in a more timely fashion.

23For these reasons the Application is dismissed and I have not considered the further arguments of the parties in relation to section 34(11).