John Garland v. City of Kitchener, 2011 HRTO 562

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Garland

Applicant

-and-

City of Kitchener

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: March 18, 2011

Citation: 2011 HRTO 562

Indexed as: Garland v. Kitchener (City)

APPEARANCES

John Garland, Applicant ) Self-represented

The City of Kitchener, Respondent ) Paula Rusak, Counsel

1This is an Application filed on August 18, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment because of disability and age.

2The Tribunal issued a Notice of Intention to Dismiss (“NOID”) on September 22, 2010 because the Application was filed more than one year after the last incident of alleged discrimination and therefore appeared to be outside the Tribunal’s jurisdiction. By letter dated October 13, 2010, the applicant responded to the NOID and the Tribunal scheduled a half day hearing by conference call to address the issue of delay. The hearing took place on March 2, 2011.

Background

3The applicant was a firefighter in the City of Kitchener Fire Department. At the time of his retirement on December 31, 2004, he held the rank of Captain. His retirement is at the centre of his dispute with the respondent, the City of Kitchener.

4In December 2001, the applicant hurt his back in the course of his duties at an accident scene. The injury left him unable to perform fire suppression duties. The applicant received benefits under the Workplace Safety and Insurance Act, 1997, S.O., 1997, c.16, Schedule A, following which he states he received accommodation from the respondent. On March 27, 2003, the respondent informed the applicant that he was no longer entitled to participate in the accommodation program and that termination of the program for him would be back dated to February 10, 2003. The applicant was to remain on sick leave until he was able to return to work.

5The applicant’s sick leave would have expired in August 2004. Consequently, he initiated discussions involving human resources personnel of the respondent and representatives of the Kitchener Professional Fire Fighters Association to address his situation. In June 2004, the parties executed a Letter of Understanding (“LOU’) that the applicant considered would allow him to retire at the end of October 2006. For reasons related to the operation of the OMERS pension plan and the respondent’s LTD insurance plan, the arrangement did not come off as the applicant expected and he alleges he was forced to retire on March 10, 2005.

6The applicant did not agree with the result and believed the respondent did not honour the LOU. However, for reasons described below, he did not address the issue until June of 2009 when he wrote to the respondent to clarify and rectify the situation in his favour. The respondent’s replies led him to conclude that the respondent had discriminated against him in the design and execution of the LOU and he filed this Application on August 18, 2010.

7Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are 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.

8The events alleged to be discriminatory took place between June 2004 and March 2005. The Application was filed on August 18, 2010, well after the expiry of the statutory time limit. I must determine if this delay was incurred in good faith and, if so, whether the respondent would suffer substantial prejudice as a result of the delay.

Applicant’s Submissions

9The applicant explained that in 2005 he believed that the respondent had not honoured its commitment to him regarding retirement, but he also believed that the situation was the result of clerical errors made by the respondent’s personnel. He fully expected that once the situation was explained, the respondent would correct the errors and address the losses he experienced as a result.

10He also deferred addressing the issue because of significant problems his family experienced between June 2004 and the spring of 2009. The applicant explained that in June 2004 his wife, who suffers from bi-polar disorder, was removed from the family home by court order. He also noted that his wife had been charged with serious criminal charges and had incurred significant debts. The applicant’s mother also passed away during the period he was attempting to address his employment situation with the respondent. In these circumstances, he stated that he was stressed, depressed and in no position to fight and felt his energy was better spent addressing the issues his family faced.

11In June 2009, the applicant felt ready to deal with the respondent regarding the circumstances of his retirement. However, his expectation that the respondent would quickly acknowledge a mistake and address his losses went unrealized. As noted above, the applicant corresponded with the respondent into November 2009, which included two letters from the applicant. The respondent’s replies to his inquiries convinced the applicant that the respondent had deliberately misled him about the options open to him regarding his pension and long term disability entitlements and purposely put him in a position where he would be forced to retire. He believed the respondent would have treated him differently if he had not been nearing retirement age. Once he was aware of the discrimination against him, he filed the Application within the one year time limit. The applicant submitted that the delay was in approaching the respondent, not in applying to the Tribunal.

Respondent’s Submissions

12The respondent submitted that, as far as it was concerned, the matter ended with the respondent’s retirement in March 2005. The respondent pointed out that the applicant was unhappy with the circumstances of his retirement at that date, but did nothing to address his concerns until June 2009. The applicant’s decision to address his family issues was not sufficient reason for the delay in filing the Application. The respondent noted that the applicant stated he was depressed and stressed, but provided no medical evidence establishing a condition justifying his delay. The respondent submitted that, pursuant to Tribunal jurisprudence, it is not sufficient to establish good faith for the applicant to state that he was unaware of the alleged discrimination against him.

DECISION

13The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25:

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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

14I find that the applicant has not established that the delay was incurred in good faith. The last alleged act of discrimination occurred on March 10, 2005 when the applicant alleges he was forced to retire in contravention of his agreement with the respondent. As of this date, he believed that the respondent’s actions were wrong, and he had one year within which to complain about them.

15I do not accept that the applicant’s delays in making further inquiries can provide a reasonable explanation for the more than five-year delay in filing this Application. The applicant believed he was wrongfully made to retire, but admits that he did not even begin to address the matter for over four years. Rather, he chose to deal with the family issues facing him at the time. I do not minimize those issues and it seems clear that this was a difficult period in the applicant’s life. The effort required to uncover the alleged discrimination – two letters in a six-month period – was not onerous. Had the applicant been reasonably diligent he would have obtained the information received in November 2009 several years earlier. Consequently, I find that he has not met his onus to establish that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.

16Accordingly, the Application is dismissed.