Jurgen (Jerry) Degen v. City of Toronto, 2011 HRTO 319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jurgen (Jerry) Degen

Applicant

-and-

City of Toronto

Respondent

DECISION

Adjudicator: David A. Wright Date: February 15, 2011 Citation: 2011 HRTO 319 Indexed as: Degen v. Toronto (City)

WRITTEN SUBMISSIONS

Jurgen (Jerry) Degen, Applicant ) Self-represented City of Toronto, Respondent ) Robert Fredericks, 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 September 5, 2008. The Tribunal currently has before it various Requests: (i) a Request by the respondent 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 respondent that the portion of the Application alleging reprisal be dismissed as it does not allege reprisal within the meaning of the Code; (iii) a Request by the respondent that the Application be dismissed for abuse of process; (iv) a Request by the respondent that the Application be dismissed pursuant to s. 45.1 of the Code; (v) a Request by the applicant that the Tribunal reconsider its Interim Decision of December 15, 2010, 2010 HRTO 2496, removing the Toronto Professional Fire Fighters' Association, Local 3888 and add further individual respondents, and (vi) 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 event 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 is a former Captain with the City of Toronto Fire Service. The Application alleges a series of events the applicant states were discriminatory and failed to accommodate his disability, dating back to 2004. On July 18, 2007, the applicant advised the City of his decision to retire, which took effect on September 7. 2007. He says that he was "forced" to retire, stating as follows:

...the Applicant did not voluntarily retire but felt bombarded with barrier after barrier in the workplace until he felt broken, mentally fatigued and depressed with no other option. He had lost all hope of ever securing an appropriate permanent accommodation since the city had done everything in its power to prevent him from securing a temporary one. There is absolutely no way that the Applicant would have chosen to leave a career that he once cherished and the prospect of a much more full pension over a greater number of years. The only choice the Applicant had before him was whether to take a pension prematurely but based on his rightful rate of pay, or to accept the immediate demotion that was offered including an imposed salary cut, which had even more dire implications. The Applicant was constructively dismissed after being discriminated against for a prolonged period of time and is still feeling the immense adverse effects from this traumatic experience.

5The central dispute between the parties is whether the date the applicant retired is the last "incident" in a series of incidents within the meaning of s. 34. The applicant states that the relevant date is the date his retirement took effect. The respondent argues that the last time it took any action relating to the applicant was on August 14, 2007, when it offered the applicant a modified duty position. This last incident, it says, is beyond the one-year statutory time limit.

6The applicant's retirement taking effect is not an "incident" of alleged discrimination. On that date, the applicant's prior decision to retire took effect. The applicant alleges no discrimination that took place on that date; the last involvement of the respondent in the applicant's accommodation issues was the offer of modified work on August 14, 2007. Moreover, even assuming the applicant's decision to retire can be seen as forced or as constructive dismissal and therefore an incident of discrimination, a finding I need not make in this case, that decision was made on July 18, 2007, when the applicant wrote the respondent to advise of his intention to retire, and is also outside the one-year period in s. 34.

7The applicant submits that Boyer v. Sears Canada Inc., 2009 HRTO 1084 stands for the proposition that the last incident is the date the employee experiences a loss or changes come into effect. In that case, the issue was whether the last "incident" was the date an employer announced allegedly discriminatory changes to a pension plan or the date the changes came into effect. The conclusion that the date of allegedly discriminatory actions and not the announcement of them is the relevant date does not support the applicant's theory that the Tribunal should take a "harm-based" approach.

8The applicant also relies upon Murambiwa v. Intercon Security, 2010 HRTO 784. This decision is of no assistance to the applicant, since it relates to a Notice of Intent to Dismiss, and the Tribunal found that it was not "plain and obvious" that the Application was outside the Tribunal's jurisdiction. It is not, however, authority for the proposition that an employee's decision to resign can constitute an "incident".

9The applicant draws a parallel to cases in which a respondent's dismissal of an applicant is considered the last incident in a series. These cases have no relevance since, in them, the respondent's dismissal was alleged to be a discriminatory incident. In this case, there is no alleged discriminatory incident or action by the respondent within the one-year time limit.

10Rather, the Tribunal has explicitly rejected the idea that continuing effects of an allegedly discriminatory action constitute an "incident" for the purpose of s. 34. In Mafinezam v. University of Toronto, 2010 HRTO 1495 the Tribunal stated as follows at para. 13:

The threshold question in applying section 34 to the circumstances here is what constitutes the "incident" to which the Application relates. In this case, I find that the "incident" to which the Application relates is the issuance of the Trespass Notice against the applicant in July 2004. This is the action which is alleged to be discriminatory. Insofar as the applicant submits that there is "ongoing" discrimination, I agree with the decision in Visic, above, to the effect that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination. In Visic, the Divisional Court upheld a decision of the Ontario Human Rights Commission (the Commission) which declined to deal with a complaint on the basis that it had been filed beyond the six-month time limit then in the Code (the Code was subsequently amended to provide for the current one-year time limit). The Commission did not accept the complainant's argument that a university's repeated reliance on a transcript claimed to be discriminatory extended the limitation period in the Code.

11Applying Mafinezam, this Application does not relate to an "incident" of alleged discrimination within the one-year period.

12In his submissions in response to the Request for Order, the applicant did not explain any basis on which any delay was incurred in good faith. However, in his Application he suggested that post-traumatic stress disorder made him unable to take action sooner and that the Association refused him legal assistance. Regarding the medical reason, the Tribunal has consistently ruled that it requires medical evidence that disability was so debilitating 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. The Association's failure to pay his legal fees does not establish good faith for his delay in making the Application.

13Finally, to the extent that the Application against the Association may have relied upon the date of a meeting with the Association as the last incident, the applicant does not make any allegation that the Association discriminated against him during that meeting, so the Application against the Association is also out of time. The Application does not allege any incidents of discrimination by the Association (as opposed to a failure to grieve), and certainly none within the one-year time period.

14Accordingly, I find that the Application is outside the Tribunal's jurisdiction, as it was filed more than one year after the last incident of alleged discrimination and the applicant has not shown that the delay was incurred in good faith. The Application is dismissed.