Agnes Fitzpatrick v. Barricks Gold Hemlo Mine and Pic River First Nations, 2011 HRTO 520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Agnes Fitzpatrick

Applicant

-and-

Barricks Gold Hemlo Mine and Pic River First Nations

Respondents

DECISION

Adjudicator: Eric Whist

Date: March 15, 2011

Citation: 2011 HRTO 520

Indexed as: Fitzpatrick v. Barricks Gold Hemlo Mines

AppearanceS

Agnes Fitzpatrick, Applicant ) Self-represented

Barricks Gold Hemlo Mine ) Mireille Khoraych, Counsel And The Ojibways of Pic River First ) Nations, Respondents )

1This Application, which was filed on March 16, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of age. The Application alleges that the applicant was differentially treated by her supervisor because of age. This Decision addresses whether the Application should be dismissed for delay.

BACKGROUND

2On June 16, 2010, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) to the applicant stating that it appeared that the Tribunal may not have jurisdiction to process her Application because it was filed more than one year after the last incident of discrimination described in the Application and the applicant had not explained why the delay in filing was incurred in good faith and why the delay would not cause substantial prejudice to any person affected by the delay. The applicant provided written submissions in response to the NOID.

3On August 3, 2010 the Registrar wrote to the parties to advise that a hearing by conference call would be held on October 20, 2010 to consider whether the Application should be dismissed on the basis of delay. The hearing was subsequently rescheduled for March 3, 2011.

4At the hearing I heard evidence from the applicant and submissions from the applicant and the respondents’ counsel.

DECISION

5Based on the applicant’s oral and documentary evidence, the Application and the parties’ submissions I dismiss the Application for delay. I find that the Application was filed after the required one year time limit and that the delay in filing was not incurred in good faith. I find that while the applicant made some efforts to pursue her Code-related rights they do not provide a reasonable explanation for the delay in the filing of her Application.

SUMMARY OF KEY EVIDENCE

6The respondent Barricks Gold Hemlo Mine (“Barricks”) operates the Williams gold mine near Marathon Ontario. Ojibways of the Pic River First Nations (“Pic River”) has a contract with Barricks to provide workers to the Williams mine. The applicant is a Pic River band member who was contracted to work at the Williams mine. She began in July 2007.

7The applicant alleges that she had issues with her work supervisor whom she believed favoured younger workers and discriminated against her on the basis of age. The applicant testified that on November 16, 2008 she went on stress leave because of her supervisor’s actions. The applicant testified that she told Pic River officials that she would not continue to work with this supervisor and that Pic River officials told her said they would try to find the applicant an alternate job at the Williams mine. On December 23, 2008 Pic River issued the applicant a Record of Employment indicating that she was being laid off. The applicant was apparently put on a waiting list for future employment. The applicant has not returned to work at the Williams mine.

8The applicant testified about the efforts she has made since 2008 to complain about her supervisor’s discriminatory treatment. I note that this testimony as well as the applicant’s written materials including her Application were confusing and inconsistent and did not clearly indicate when and to whom the applicant may have complained.

9The applicant testified that she initially asked Pic River officials for help, seeking to clarify, for example, whether her complaint would fall under federal or provincial jurisdiction. The applicant testified that Pic River officials were not helpful. The applicant testified that she was then told by other persons that she should complain to the “Labour Board”.

10The applicant testified that she complained to the Labour Board about the discriminatory treatment she was subject to and that she made this complaint in 2009, later testifying it was in May 2009 then testifying it was in November 2009 as well as testifying that it was made before she made a complaint under the Employment Standards Act 2000 (“ESA”). The applicant testified that she tried to follow up on this complaint only to be told that it was in a queue. The applicant has no copy of a complaint and no documents from the “Labour Board” that a complaint of hers was received or addressed in some manner.

11The applicant testified that she filed a complaint with the Ontario Ministry of Labour in May 2009 under the ESA and that this complaint was specifically in relation to whether she had been laid off or terminated from her job at the Williams mine and whether she had any statutory benefits owing to her.

12The applicant testified that she received a formal response to her ESA complaint in March, 2010. She testified that she spoke to an official who had been involved in her ESA complaint, a Blair McKinnon, and asked him if he was dealing with her harassment complaint and that he had told her that he was only dealing with the issue of her termination. It also appears that the applicant also pursued a complaint to the Workplace Safety and Insurance Board (“WSIB”) in relation to an alleged injury sustained while working at the Williams mine.

13The applicant testified that she tried to get a lawyer through Legal Aid and at a community clinic in 2008 and 2009 but was unsuccessful. She testified that she went to the Federal Labour Board in October 2009. The applicant testified that she called the Ontario Human Rights Commission in May 2009 only to be told that she was calling the wrong place and that she subsequently called the Human Rights Legal Support Centre (“HRLSC”) in 2009. She also testified that it was in July 2010 that she contacted the HRLSC. She testified that she spoke to the Ministry of Labour in June 2009.

14The applicant testified that in her efforts to pursue a complaint of discrimination about her supervisor she was never told by anyone that she contacted about the Tribunal and only came to learn of it by means of her own internet search. She later testified that she learned a little about the Tribunal in 2009, and that when she found out about the Tribunal she thought if her complaint to the Labour Board did not work out she would take the further step of coming to the Tribunal. She also testified that when she found out about the Tribunal she took action right away by filing her Application.

ANALYSIS

15Section 34 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. It also provides that persons may apply to the Tribunal more than one year after the incident(s) if the delay is incurred in good faith and does not cause substantial prejudice to the respondent. Section 34 specifically 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

16In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. 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

17The applicant specifically states in her Application that the last incident of discrimination took place on September 20, 2008. The narrative in her Application also refers to her supervisor coming to her house on November 16, 2008, an action the applicant clearly objected to. However, regardless of whether the last incident of alleged discrimination may have occurred in September or November 2008 it is clearly more than one year before the applicant filed her Application with the Tribunal on May 16, 2010. The applicant has not met the requirements for filing her application in a timely manner as set out on section 34(1).

Was the Delay in Filing the Application Incurred in Good Faith

18The Tribunal has held that in order to establish that a delay was incurred in good faith under section 34(2) 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.

19The applicant submitted that she did try to pursue her rights but because she was not knowledgeable and did not have a lawyer she may have done this in an inappropriate or ineffective manner. She submitted that she did not know what to do and that she was sent in wrong directions. She stated that it was a frustrating experience that was not helped by her state of depression.

20I accept, based on the applicant’s overall testimony, her Application and documents that the applicant made some efforts to take action following her work experience at the Williams mine. However, there is a significant issue as to exactly when and what she did. The applicant could not provide consistent dates for events. She did not provide particulars to help explain what it was that she did and importantly what it was that she was told in response to her inquiries. I heard conflicting evidence as to when she made contact with, for example, the HRLSC and when she made her complaint to the Labour Board. I did not hear particulars about what occurred when she contacted various resources such as lawyers, community clinics and the HRLSC. I heard conflicting testimony as to whether she learned of the Tribunal in 2009 or 2010. I heard conflicting testimony as to whether she filed her Application immediately upon learning of the Tribunal or whether she chose to wait for another legal process to finish.

21In the end it was difficult, based on the applicant’s vague, conflicting and confusing evidence, to determine what happened and when. In my view I do not have a reliable account of what the applicant did during the period December 2008 to May 2010 and what and when she knew about her Code-related rights and the role of the Tribunal.

22One confusion was in relation to the complaint to the “Labour Board”. The applicant did not provide documentary evidence to indicate what this complaint said, when this complaint may have been made and indeed what she understood the Labour Board to be. The applicant testified that she made this complaint in 2008, May 2009 and November 2009. She testified that it was made prior to her ESA claim.

23This confusion may be partly resolved by the Application. In response to questions 14 and 15 on the Application the applicant identifies an ESA claim and a Labour Board claim and cites the same claim number for both. In response to question 15(c) “Explain why you believe the other proceeding did not appropriately deal with the substance of this Application”, the applicant writes “Only dealt with employment standards act and I applied for discrimination and harassment”. In response to question 7(d) “If you are applying more than one year from the last event please explain why”, the applicant writes “Someone misled me to the Employment Standards Act. I applied to Labour Board May 25, 2009 for discrimination and harassment.”

24The Application would appear to indicate that the applicant made a complaint in May 2009 about discrimination and harassment as part of the complaints process used to address complaints under the ESA.

25However, even if I accept that the applicant filed a complaint of discrimination in May 2009 under an ESA complaints process and awaited the results I am not satisfied that this provides a reasonable explanation for why the applicant did not file her application with the Tribunal until May 2010.

26I am not satisfied that the applicant can be said to have acted with due diligence in pursuing her complaint of discrimination. The applicant has not established that filing of a complaint of discrimination as part of the ESA process was appropriate or reasonable or, as importantly, that it was reasonable not to take further action, in particular, pursuing an Application with the Tribunal. In my view the applicant is essentially claiming ignorance of her rights as the reason for not filing an Application with the Tribunal within the required timeframe. The Tribunal has determined that it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. See Lutz v. Toronto (City), 2009 HRTO 1137; Ababio v. Humber River Regional Hospital, 2009 HRTO 286.

27At another point in her testimony the applicant appeared to be saying that she was aware of the Tribunal and her rights to file an Application in 2009 but was awaiting the outcome of her earlier complaint. If this was indeed the case the Tribunal has determined that a delay based on waiting for another legal proceeding to unfold is not a delay incurred in good faith. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

28I accept that the applicant may have not have been knowledgeable of her rights but the applicant has not provided a reasonable explanation for why she was only able to file her Application in May 2010 and not within the required one year time limit. I did consider the applicant’s further statement that she had been depressed but I was not provided any further oral evidence on this point nor any medical documents to explain how this condition affected the applicant. Consequently I had to give this claim little weight.

29As the applicant has not shown that the delay in filing was incurred in good faith the Application is dismissed.

30The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579).