David Kelterborn v. City of Toronto and Frank Mitchell, 2011 HRTO 318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Kelterborn

Applicant

-and-

City of Toronto and Frank Mitchell

Respondents

DECISION

Adjudicator: David A. Wright

Date: February 15, 2011

Citation: 2011 HRTO 318

Indexed as: Kelterborn v. Toronto (City)

WRITTEN SUBMISSIONS

David Kelterborn, Applicant ) Self-represented

City of Toronto and Frank Mitchell, Respondents ) Kerri Kitchura, Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), filed on April 16, 2009. The Tribunal currently has before it three Requests: (i) a Request by the respondents that the Application be dismissed as outside the Tribunal's jurisdiction, as a result of the delay in filing it; (ii) a Request by the applicant that the Tribunal reconsider its Interim Decision of December 15, 2010, 2010 HRTO 2495, removing various respondents; and (iii) a Request to Intervene filed by the Toronto Professional Fire Fighters' Association, Local 3888.

2Having considered the parties' submissions, I find that this Application is outside the Tribunal's jurisdiction, as it was filed more than one year after the last alleged incident of discrimination and the applicant has not shown that the delay was incurred in good faith within the meaning of the Tribunal's case law. Accordingly the Application must be dismissed. As the Tribunal has no jurisdiction over the Application as a whole, there is no need to consider the Request to Reconsider or the Request to Intervene.

SECTION 34 OF THE CODE

3Section 34 of the Code provides that an Application must be filed more than one year after the incident or last incident in a series to which it relates. A late Application is within the Tribunal's jurisdiction if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by it. Sections 34(1) and (2) read as follows:

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.

ANALYSIS

4The applicant, a former fire captain with the respondent City, injured his back in 1997. The Application alleges that at various times between then and his retirement on January 31, 2008, the City discriminated against him and failed to accommodate his disability to the point of undue hardship as required by the Code. The applicant states that he was forced to retire, a decision he made in November 2007, because of his treatment by the City because he realized he would not be properly accommodated by the City. The Application was not filed until April of 2009. The parties agree that the Application was filed more than one year following the last event; the issue is whether the delay was incurred in good faith.

5In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about good faith under the Code:

In my view, where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period 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 may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, 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, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

6The applicant argues, first, that any delay was incurred in good faith because of his medical condition. He states that as a result of the failure to accommodate and his "forced retirement", he became depressed and horribly frustrated because he was being treated unjustly. He argues that he was "in no mental state to either find out what my rights were, or to entertain any kind of legal action against the City or Local 3888". The applicant states that "although its effects have not been clinically diagnosed, the constant anxiety that I felt defending my livelihood, physical health, mental health and rights, took a severe toll on me".

7This argument cannot establish good faith within the Tribunal's case law. While 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 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

8Second, the applicant makes various submissions focused on telephone calls to the Commission and the change in the human rights system that took place on June 30, 2008. These arguments are contained in three sets of submissions, one signed by him, one signed by Jurgen Degen which the applicant submitted as further argument, and one drafted on his behalf by his former representative.

9The applicant states (in submissions that conflict with his submissions that he was unable to take steps because of his disability) that he made various telephone calls to the Ontario Human Rights Commission after his retirement to inquire about his rights. He states that he was told that because he was unionized he "had to go through the grievance procedure with the union" and that he "was told several times that my complaint could not go to the application stage until I went through the grievance process". He says that when he was "forced" to retire the Association would not agree to file a grievance. The applicant does not state that he contacted the Commission after the Association refused to file a grievance or that it refused to accept a Complaint after he advised it that the Association would not do so. The applicant states that in a conversation with another former firefighter, Jurgen Degen, in March 2009, he "discovered" that he could pursue an application to the Tribunal.

10The applicant relies upon the "discoverability" principle, discussed in Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 and Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2 for the proposition that the relevant period did not begin to run until he learned that he could pursue an application to the Tribunal. Alternatively, he argues that the "discovery" of the new system establishes good faith, relying upon the following quotation from the family law case of Busch v. Amos (1994), R.F.L. (4th) 36 at para. 8:

I also agree that failure to act in ignorance of one's rights may, in some circumstances, amount to 'good faith'. However, in my view, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.

11The "discoverability" principle discussed in Peixeiro and Kamloops has no application to the facts of this case. Those cases deal with situations where plaintiffs discover the facts underlying their claim later. They do not establish that a time period only commences when an applicant learns about his or her rights under the Code.

12The applicant's "discovery" of the changes to the Code that occurred in 2008 also cannot establish good faith within the meaning of the Code. It is true that when it received complaints, the Ontario Human Rights Commission had the discretion, under s. 34 of the old Code, to dismiss a complaint where it was of the view that it "could or should be more appropriately dealt with under an Act other than this Act".

13The applicant suggests that the Commission's "policy" that unionized employees must pursue a grievance was contrary to the Code. The Commission's application of its powers clearly set out under s. 34 of the old Code is not discrimination.

14Accepting as true that the applicant was told on the phone that he must file a grievance prior to filing a complaint under the existing system, this does not constitute good faith. First, the applicant does not show that he acted diligently based upon the information he says was provided by the Commission. He did not take action promptly once the Association advised him that it would not file a grievance.

15Second, the Commission was giving information about the existing system that was in effect at the time, but the applicant did not take action when the system changed. In Desaulniers v. Canadian Auto Workers, 2009 HRTO 1743, where the applicant also relied upon an alleged statement by a Commission staff member on the telephone, the Tribunal expressed, at para. 12, the general principle expressed in its cases that "ignorance of the law does not excuse undue delay in the initiation of a human rights application"; see also Lutz v. Toronto (City), 2009 HRTO 1137. The applicant's failure to learn earlier about the changes to the system, which were passed in December of 2006, cannot establish good faith for filing the Application well out of time and eight months after the system changed.

16The applicant and Mr. Degen suggest that there was general confusion about the changes to the system that justify the delay. However, this is contradicted by the article attached to Mr. Degen's submissions from his Summer 2007 edition of Intrepid Firefighter magazine that clearly outlines the changes and how they affect Association members.

17The submissions also suggest that the Commission misled the applicant and said he was barred from pursuing a complaint at the Commission because he was unionized. From Mr. Kelterborn's account of what he was told on the phone, it appears that Commission staff said that he should attempt to file a grievance before filing a complaint with the Commission. They did not say that he could not pursue a Commission complaint once the Association declined to file a grievance. The applicant failed to take any steps to pursue the matter once the Association decided that it would not grieve.

18Given all these circumstances, I cannot find that the discovery of changes to the system or information provided on the phone by the Commission establishes that the delay was incurred in good faith within the meaning of the Tribunal's case law.

19The applicant makes one other argument in relation to the discoverability principle. He states that he only discovered certain documents as a result of the City's Response and disclosure in another firefighter's Application. This does not establish good faith, as it does not suggest that he did not know within the statutory time frame that he had a potential application to the Tribunal. As the Tribunal noted in Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23:

The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

20The submissions signed by Mr. Degen suggest that the City cannot make requests based on delay because this issue was "discussed" in a previous day of hearing on October 28, 2009. While there was brief general discussion of the issue, the Tribunal did not make any rulings on delay. The only rulings made on October 28, 2009 are recorded in the Tribunal's decision, 2010 HRTO 13.

21I find that the Application is outside the Tribunal's jurisdiction, as it was filed more than one year after the last incident and the applicant has not shown that the delay was incurred in good faith. The Application is dismissed.