Langlois v. Toronto Transit Commission, 2011 HRTO 79

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Langlois Applicant

-and-

Toronto Transit Commission Respondent

DECISION

Adjudicator: Brian Cook Date: January 11, 2011 Citation: 2011 HRTO 79 Indexed as: Langlois v. Toronto Transit Commission

APPEARANCES

Andrew Langlois, Applicant ) Deborah Langlois, ) Representative

Toronto Transit Commission, ) Marni Tolensky, Respondent ) Counsel

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"), and specifically whether the Application should be dismissed because it was filed more than one year after the last incident of alleged discrimination. As directed in Interim Decision 2010 HRTO 1778, a telephone conference call was scheduled to hear evidence and submissions on the delay issue.

THE DELAY

2Section 34 of the Code provides 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.

34(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

3The applicant alleges that he was subject to a series of discriminatory incidents that culminated in August 2008, when he stopped work. The respondent disputes that there was a culminating event in August 2008, and asserts that many of the alleged incidents described in the Application occurred several years prior to August 2008. The respondent also submits that the alleged events were not a series of connected events but were rather isolated incidents.

4Assuming, without deciding, that there were a series of connected events, culminating in August 2008, since the Application was not filed until January 2010, it is clear that it was not filed within one year of the last alleged discriminatory incident. Accordingly, the applicant is not permitted to bring the Application unless the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to the respondent.

Was The Delay Incurred In Good Faith?

5During the telephone conference call, the applicant's wife said that between August 2008 and January 2010, the applicant was too ill to file an Application and also too ill to explain the details of what had happened to him at work to allow her to file an Application on his behalf. She explained that in this period, the applicant was suffering from severe depression and had considerable difficulty coping even with the activities of daily living.

6There is medical information that establishes that the applicant has been diagnosed as suffering from fibromyalgia and major depression. According to a report dated August 4, 2010 from Dr. Rheal Leveille, his family doctor, in July 2008, the applicant suffered a major depressive event and flare up of his fibromyalgia. From August 2008 to January 2010, his depression was resistant to antidepressant medications. Dr. Leveille indicates that the applicant was socially withdrawn, and unable to concentrate or focus on any tasks. He had "poor clarity of thought, lack of judgement and a short attention span." Dr. Leveille was unable to arrange a consultation with a psychiatrist for the applicant until January 2009. The applicant has since been treated by a psychiatrist and has also seen a psychologist. The psychiatrist has provided a report dated August 6, 2010 which confirms that the applicant suffers from "treatment-resistant unipolar mood disorder" which has likely "affected his abilities to co-ordinate the forwarding of documentation."

7As the respondent notes, while the applicant may have been disabled in the period from August 2008 to January 2010, it does not follow that he was unable to file the Application prior to January 2010 or that the delay was incurred in good faith. The respondent further notes that in approximately September 2008, the applicant was able to file a claim for benefits under the Workplace Safety and Insurance Act. The Workplace Safety and Insurance Board denied the claim under its "mental stress" policy. The applicant also retained counsel in 2008 who pursued various matters relating to the applicant's employment with the respondent. The applicant states that the lawyer advised him not to pursue the human rights issues at that time because it could be stressful. As well, the applicant engaged in lengthy email exchanges with the respondent about various issues in the period after he stopped work.

CONCLUSIONS

8The approach that the Tribunal has followed in dealing with the question of whether the delay in filing an application was incurred in good faith was described in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. At paragraphs 24 and 25, that Decision said the following:

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.

9In this case, the applicant has provided evidence to support his contention that he was disabled in the period after he stopped work and that this impacted his ability to file an Application. However, during the sixteen month period between the last alleged discriminatory event and the date when the Application was filed, the applicant was able to retain and instruct legal counsel with respect to matters that seem to be directly related to the general allegations in the Application. While counsel may have advised the applicant that filing an application could be stressful, I am not satisfied that this explanation provides a good faith explanation for the delay in filing the Application. As well, the applicant was able to pursue other matters, including a claim for benefits under the Workplace Safety and Insurance Act and emails about various matters with the respondent. This suggests that the applicant was not so disabled that he could not have filed an application within the one year period contemplated by section 34 of the Code. The applicant's spouse, identified in the Application as his representative, filed the Application. Even if the applicant's medical condition made it difficult for him to file an Application, it is not clear why his representative was not able to do so.

10On the basis of the available evidence, I am unable to conclude that the delay in filing the Application was incurred in good faith. For this reason, the Application must be dismissed.