Whitwell v. U.S. Steel Canada, 2011 HRTO 670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Whitwell

Applicant

-and-

U..S. Steel Canada Inc. – Hamilton Works

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 12, 2011

Citation: 2011 HRTO 670

Indexed as: Whitwell v. U.S. Steel Canada

WRITTEN SUBMISSIONS

Joseph Whitwell, Applicant ) Self-represented

U..S. Steel Canada Inc. – ) Patricia G. Murray, Counsel

Hamilton Works, Dan Fisher, )

Dean Comand and James Kee, )

Respondents )

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

BACKGROUND

2The applicant alleges that, in 2005, the respondents denied him the opportunity to complete training to be qualified as a 3rd Class Operating Engineer because of his disabilities. The applicant further alleges that the respondent employer laid him off in April 2009 and on November 13, 2009 the respondent employer dismissed the applicant and asserted it had no job for him. The applicant states that he would have had a much better chance to find another job had the respondents allowed him to complete his training to become a 3rd Class Operating Engineer.

3The respondents filed a Response and made Requests for Order During Proceeding to strike certain portions of the Application for being untimely and to remove the personal respondents as parties to the Application.

4The applicant opposes these Requests and also made a Request for Order During Proceeding seeking to add Eldon Bull as a personal respondent. This Interim Decision deals with these Requests.

DELAY

5Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

6Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

7As stated in Miller v Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant 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 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. 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. 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 did not pursue his rightsunder the Code in a timely manner.

8The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “incidents” to which the Application relates. The applicant states the respondents’ behaviour towards him in 2005 prevented him from obtaining credentials that would have put him in a better position to secure a job in 2009. In other words, the effect of the respondent’s allegedly discriminatory behaviour in 2005 contributed to the termination of his employment in 2009.

9The Tribunal will accept an application based on an incident outside the one year limit if it is one of a series of incidents, the last of which falling within the limitation period. In Mafinezam v. University of Toronto, 2010 HRTO 1495 the Tribunal cited Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993 (ON S.C.D.C.), 236 O.A.C. 115 (ON S.C.D.C.) which discussed the concept of a “continuing contravention” and adopted the following statement by the Manitoba Court of Appeal:

To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.

Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, quoted in Visic , supra, at para. 45

10In my view, the continuing effect of the applicant’s inability to become qualified as a 3rd Class Operating Engineer is not part of a series of incidents of discrimination within the meaning of section 34(1). The continuing effect does not extend the time limit for filing an application under the Code. If it did, then there would effectively be no time limit on filing an application, since most actions of any significance will have long term effects.

11Since there is no series of incidents under section 34(1), the applicant must demonstrate that the delay in complaining about the denial of the training opportunity was incurred in good faith, pursuant to section 34(2). As noted above, to establish good faith the applicant must provide a reasonable explanation for the delay in pursuing his rights under the Code. The applicant’s explanation seems to be that he was diligent in pursuing his concerns with the corporate respondent’s personnel, including the individual respondents, and his union – to no avail. He does not explain why he did not file a human rights complaint in 2005. If he believed that the respondent’s denial of this opportunity was discriminatory, the applicant should have acted diligently and complained to the Human Rights Commission, the body charged with receiving such complaints at that time.

12In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established 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.

13The respondent’s Request is granted. The applicant may only rely on those incidents alleged to have occurred within the one year preceding the filing of the Application.

REQUEST TO REMOVE THE INDIVIDUAL RESPONDENTS/ REQUEST TO ADD AN INDIVIDUAL RESPONDENT

14The respondents request removal of the individual respondents and amendment to the style of cause accordingly. The applicant seeks to add a personal respondent. Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party.

15In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

16The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

17The respondents submit that the corporate respondent will be able to respond to or remedy the alleged conduct and there is no issue with the corporate respondent’s deemed liability in the context of the allegations. Accordingly, the applicant will suffer no prejudice should the Tribunal remove the individual respondents.

18The applicant opposes the Request to remove the individual respondents. The applicant states that the individual respondents were the people to whom he raised his concerns throughout the years, but they did nothing to assist him. The applicant asserts that the individual respondents are ignorant of the requirements of the Code and must be held accountable.

19In support of his request to add an individual respondent, the applicant states that Mr. Bull was the Human Resources contact person for the department in which he was employed. The applicant further states that he informed Mr. Bull that he was acting contrary to the Code during a meeting with the applicant in November 2010.

20The respondents adopt their submissions regarding the other individual respondents in response to the applicant’s Request to add Mr. Bull as a party. The respondents further submit that the applicant has not provided sufficient grounds for adding Mr. Bull to the Application.

21I agree with the respondents’ submissions. The applicant refers only to Mr. Fisher in the Application. There is no suggestion that the individual respondents or Mr. Bull acted outside of the scope of their duties. There is a corporate respondent in the proceeding and there is no issue with the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondents or it’s ability to respond to or remedy the alleged conduct. In my view, considering all the circumstances, it is not necessary to involve Mr. Fisher, Mr. Comand, Mr. Kee or Mr. Bull as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

22The respondents’ request to remove as individual respondents to the Application is therefore granted. The applicant’s request to add Mr. Bull is denied. The style of cause shall be amended accordingly.

ORDER

23The applicant may only rely on those incidents alleged to have occurred within the one year preceding the filing of the Application.

24The individual respondents shall be removed from the Application and the style of cause amended accordingly.

25I am not seized of this matter.