Longtin v. Great-West Life Assurance Company, 2011 HRTO 244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Longtin

Applicant

-and-

The Great-West Life Assurance Company, Anne-Marie Peluso, Cathy Weaver, Dale McRae and Karen Strothard

Respondents

DECISION

Adjudicator: Naomi Overend

Date: February 3, 2011

Citation: 2011 HRTO 244

Indexed as: Longtin v. Great-West Life Assurance Company

WRITTEN SUBMISSIONS

Christine Longtin, Applicant ) Self-represented

The Great-West Life Assurance Company, ) Anne-Marie Peluso, Cathy Weaver, ) Dale McRae and Karen Strothard, ) Susan Murdoch, Counsel Respondents )

1This Decision deals with the Request brought by the respondents that the Application be dismissed for lack of jurisdiction on the basis of delay.

BACKGROUND FACTS

2The applicant worked as an employee with the respondent company (“Great-West”) for approximately three years prior to commencing a disability-related absence from work in February 2007. In January 2007, prior to commencing her leave, the applicant filed an internal harassment complaint concerning her supervisor, one of the named respondents. In November 2007, the applicant’s doctor approved a graduated return to work. The applicant, in fact, did not return to work as Great-West advised her on or about November 20, 2007 that, in the meantime, her job had been eliminated. She was offered a severance package by letter dated November 22, 2007.

3As part of the severance, the applicant was advised that she would remain on long term disability benefits (“LTD benefits”), received through Great-West as well, until December 9, 2007. The applicant’s then husband sent in an appeal of the termination of LTD benefits and on August 28, 2008, the applicant’s LTD claim was reinstated retroactively. She has been LTD benefits continuously since that time.

4The applicant alleges that Great-West discriminated against her in employment by inproperly terminating her position as of December 2007 contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Since that time the applicant has written numerous letters to Great-West in an attempt to reverse that termination decision to no avail.

5In addition, the applicant alleges that, since she is not an employee, her receipt of LTD benefits is not accompanied by other benefits such as health benefits and participation in a pension plan. This appears to be the basis of her allegation that Great-West is discriminating against her with respect to the provision of services, contrary to the Code. That is, the alleged discriminatory treatment in services flows from Great West’s decision to terminate her employment.

6The applicant raises numerous other issues in her Application, which is some 230 pages in length, and her Reply, which is 27 pages in length, but it is not necessary to summarize these issues inasmuch as they are unrelated to the issue of delay.

7The respondents raised the issue of delay in their Response. The Tribunal requested that the parties file further submissions on the issue of delay, which they did. Subsequent to the Tribunal’s request for submissions, the applicant filed ten Requests for Order (Form 10) in which she requests that the Tribunal add additional documents to her file, order production of documents from the respondents, reverse her termination and proceed with her Application.

8In light of the decision on delay, it is not necessary to address these additional requests.

Decision and analysis

9Section 34 of the Code 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.

10As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

11The applicant filed her Application on June 28, 2010. The respondents assert that the last date of any alleged discrimination occurred in December 2007, when the termination of the applicant’s employment became effective. They state that since then the applicant has been in constant communication in an attempt to reverse that decision, but that the answer has remained the same. Accordingly, the Application is well beyond the one-year time limit set out in s. 34 of the Code.

12The applicant asserts that her Application is timely as Great-West continues to discriminate against her and the allegations are, therefore, ongoing.

13Assuming for the purposes of this decision that the termination of her employment in December 2007 constitutes an act of discrimination, it is difficult to see how the repeated refusal of the respondents to reverse that decision constitutes a separate act of discrimination on which a claim might be founded.

14The applicant also argues that, in light of the fact that since the decision to terminate her employment, she has been found to have been disabled at the relevant time, and that contractually Great-West is obliged to re-instate her. Great-West takes the position that this is incorrect. Regardless of whether the applicant’s argument is valid, it is difficult to see how this alleged contractual breach is discrimination contrary to the Code.

15The applicant has provided numerous pieces of correspondence she has sent to the respondents during the 30 month period between the termination of her employment and the filing of her Application, to which she states they did not reply or indicated that “no answer would be provided.” There was nothing to prevent the applicant from filing her Application while also embarking on this ultimately unsuccessful endeavour to persuade the company of the error of its decision.

16The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

17The distinction between “continuing effects of an act of alleged discrimination” and “further acts of discrimination” has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto, 2010 HRTO 1495.

18On the face of the facts in this instant case, the applicant continues to not be employed by Great-West and, as a result of that status, continues to not have access to health and pension benefits. That is, she continues to experience the consequences of what she alleges is the discriminatory act of terminating her employment. Her attempts to dispute that termination, and the company’s decision to stand by its original decision, cannot be said to be further acts of discrimination.

19The Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As 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.

20The applicant has provided no reasonable explanation for why she did not pursue her rights under the Code in a timely fashion. Her efforts to persuade Great–West to reverse itself persisted after she filed this instant Application. She has provided no explanation for why she chose the summer of 2010 to institute this proceeding.

21Given 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.

22The Application is accordingly dismissed.