Marian Jones v. Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services, 2011 HRTO 624

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marian Jones

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Ena Chadha

Date: March 30, 2011

Citation: 2011 HRTO 624

Indexed as: Jones v. Ontario (Community Safety and Correctional Services)

1This is an Application filed on August 24, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. In her Application, the applicant indicated that the facts of the Application are part of grievance arbitration before the Public Service Grievance Board (“PSGB”) that is still in progress. The applicant included a copy of her PSGB application.

2This Decision deals with the issue of whether the Application should be dismissed as beyond the Code’s one year limitation period or deferred pending the completion of the PSGB proceeding.

BACKGROUND

3On October 1, 2010, the respondent filed a Request for an Order During Proceedings (“Request”). In its Request, the respondent asks that the Application be dismissed because of delay. The respondent submits that the one year timeline for filing an application ran from June 25, 2009, the date that the applicant’s employment was terminated, and therefore the Application was filed out of time. Alternatively, the respondent seeks deferral of the Application until a decision is issued by the PSGB. The respondent also requests an extension of time to file its Response.

4On October 19, 2010, the applicant filed a response opposing the respondent’s Requests. The applicant submits that the respondent issued her a Record of Employment (“ROE”) on September 9, 2009 and that the ROE was dated June 8, 2009. The applicant alleges that it was only through this document that she discovered the decision to terminate her employment pre-dated a June 11th meeting which took place to ostensibly discuss employment-related concerns. The applicant alleges that the September 9, 2009 provision of the ROE, and the discovery of other information on September 10, 2009 also pre-dating the letter of termination, extends the timeline for filing her Application. The applicant asserts that the Application should not be deferred because the PSGB does not address the applicant’s allegations of failure to accommodate and focuses on whether or not she was dismissed for cause. The applicant included two preliminary rulings issued in the PSGB proceeding.

5On October 29, 2009, the respondent filed reply submissions. The respondent alleges that the date noted on the ROE is immaterial to the Code timeline because the applicant was well aware of all the circumstances giving rise to her dismissal in June and July 2009. The respondent points out that the applicant filed her PSGB application in March 2009 and amended the application in August 2009. The respondent alleges that applicant picked the PSGB as the forum she first wished to pursue her concerns and that the PSGB proceeding involves the same allegations as the current Application, including whether the applicant was offered suitable accommodation, the medical evidence of the applicant’s condition, the process relating the employment termination, and the investigation of fraud.

DELAY

6Section 34 of the Code provides:

(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.

7The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, 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.

8Pursuant to section 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal cannot deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith. In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

9Based on the applicant’s submissions and chronology of events, while the applicant alleges that some elements of the alleged discriminatory termination were only discovered by the applicant in early September 2009, it appears that the last alleged event took place in June 2009. The applicant’s argument that she only fully learned of the respondent’s discriminatory actions in September 2009 is an argument that essentially relies on the notion of discoverability. With respect to discoverability, the Tribunal in Klein, supra, observed (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.

10I do not accept the applicant’s argument in the circumstances of this case. I am not satisfied that it was only in September 2009 that the applicant came to understand or believe that the respondent had treated her unfairly because of her mental disability and that her disability was an alleged factor in her dismissal. Having carefully reviewed the applicant’s PSGB Application and the two preliminary rulings, I find it is apparent that applicant’s PSGB grievance raises a similar subject-matter as the Application. There is substantial overlap between the facts and issues covered by the Application and the allegations in the PSGB application. As such it is clear that, on August 17, 2009, when the applicant amended her PSBG application, her employment-related disability concerns had crystallized. Although it appears that the applicant uncovered information through the ROE and other documents that further buttressed her discrimination concerns and may even constitute evidence that could possibly support her allegations, the new information did not give rise to new knowledge of alleged human rights violations that were previously unknown to the applicant.

11In my view the information allegedly uncovered by the applicant in September 2009 was not information that helped the applicant discover her case, but rather evidence that she believed substantiated her allegations. This discovery does not establish good faith, as it does not suggest that the applicant was unaware within the statutory time frame that she had a potential application to the Tribunal.

12I further do not accept the applicant’s claim that, by perpetuating the alleged damaging effects of the discriminatory termination, the provision of the ROE constitutes a further incident of discrimination. The Tribunal has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents. See Mafinezam v. University of Toronto, 2010 HRTO 1495.

13The applicant has provided no satisfactory explanation for why she could not have filed her Application to this Tribunal in a timely manner. Given the absence of evidence that the delay was incurred in good faith, I find that the Application does not satisfy the requirements of section 34 of the Code.

14The 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).

15Accordingly, the Application is dismissed.