Wagman v. VPI Burlington, 2011 HRTO 447

Human Rights Tribunal of Ontario

B E T W E E N:

Sandra Wagman Applicant

-and-

VPI Burlington/Head Office Mississauga and Martha Colangelo Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: March 2, 2011 Citation: 2011 HRTO 447 Indexed as: Wagman v. VPI Burlington

Written submissions

Sandra Wagman, Applicant Self-represented

1The applicant filed an Application on April 21, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") alleging discrimination on the basis of disability and record of offences in employment.

2In essence, she alleges that her disability was a factor in the respondents' decision to terminate her employment in 2008.

3On January 13, 2011, the Tribunal issued a Notice of Intent to Dismiss, indicating that the Application appears to be outside the Tribunal's jurisdiction (power to decide) because it was filed more than one year after the last incident of discrimination. The Tribunal directed the applicant to file written submissions on the dismissal issue.

4The applicant has filed written submissions. She states that she delayed filing the Application because she was suffering from trauma and depression as a result of the alleged harassment and bullying by the respondents. She does not provide any medical documents in support of her arguments.

5The applicant states that it took more than a year for her to obtain the counselling she needed and that she continues to feel humiliated and hurt.

6The applicant states that, although it was difficult to do so, she began searching for work and taking part in interviews shortly after her dismissal. Although she has held a number of different jobs since being dismissed by the respondents, she states that she has been unable to keep those jobs because of the incidents that give rise to this Application and the effect they have had on her health.

7Section 34 of the Code states:

(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.

8Pursuant to section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

9In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons directly impeded the applicant's ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110; Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic School District School Board, 2008 HRTO 424; and Doyle v. Canarm, 2009 HRTO 674.

10The applicant states that her mental health issues prevented her from filing the Application within the limitation period set out in the Code. Her materials reference a Workplace Safety and Insurance Board matter, although it is unclear from the documents submitted whether a proceeding was initiated or pursued.

11The Application has not yet been served on the respondents and the respondents have not had an opportunity to address the dismissal issue. Based on the applicant's submissions, alone, I cannot determine whether or not the delay in filing the Application was in good faith or whether the respondents are substantially prejudiced by the delay.

12In the circumstances, the Application will be delivered to the respondents. They need not file a Response at this stage.

13Within two weeks of the date of this Interim Decision, the applicant may file with the Tribunal and provide to the respondents any documents, including medical documents, she feels support her position on the delay issue.

14Within four weeks of the date of this Interim Decision, the respondents are directed to file with the Tribunal and provide to the applicant written submissions regarding whether the Application ought to be dismissed pursuant to section 34 of the Code.

15Within five weeks of the date of this Interim Decision, the applicant may reply to the respondents' submissions by filing written submissions with the Tribunal and providing them to the respondents.

16I am not seized of this matter.