HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Suzanne Hemming
Applicant
-and-
M. Vernescu Drugs Limited o/a
“Shoppers Drug Mart” and James Jacobs
Respondents
DECISION
Adjudicator: Eric Whist
Indexed as: Hemming v. M. Vernescu Drugs
WRITTEN SUBMISSIONS
Suzanne Heming ) Self-represented
1This Application was filed on June 7, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability and further alleges reprisal. This Decision addresses whether the Application should be dismissed for delay.
BACKGROUND
2The applicant was employed as a merchandiser by M. Vernescu Drugs Limited o/a “Shoppers Drug Mart”. The applicant was dismissed from her job on May 21, 2009. but received a further two weeks pay in lieu of notice in accordance with the Employment Standards Act, 2000.
3The respondent filed a Response on August 24, 2010 denying that it had discriminated against the applicant. The Response includes a request that the Application be dismissed for delay or deferred pending the outcome of another proceeding. The respondents submit that the Application was filed over one year after the last alleged incident of discrimination and as such, was beyond the one-year time frame for the filing of an application set out in section 34(1) of the Code. The respondents further submit that the applicant did not provide a reasonable explanation that the delay was incurred in good faith so as to permit the filing of a late application pursuant to section 34(2).
4The respondents also submit that the applicant has commenced an Employment Standards claim which deals with the same subject matter and incidents as raised in the Application and that, as a consequence, the Application should be deferred pending the outcome of this other proceeding. The respondents did not provide a copy of this claim or further submissions as to why the Application should be deferred given this other claim.
5On November 25, 2010, the Tribunal wrote to the applicant enclosing a copy of the respondents’ Response. The Tribunal directed the applicant to include with her Reply to the Response submissions on the requests to dismiss and defer.
6The applicant filed her Reply and submissions on March 11, 2011. The applicant submits that she did file her Application within the one year time limit set out in section 34(1). The applicant does not respond to the request to defer her Application.
7In an Interim Decision dated March 17, 2011, 2011 HRTO 546, the Tribunal asked the applicant for further submissions on the issue of delay and asked the respondent for a copy of the Employment Standards claim and further submissions to support its requests to defer and dismiss the Application.
8The applicant filed written submissions reiterating that her application was filed in time and, in the alternative, that the delay in filing her Application was incurred in good faith because she was ill for extended periods of time following the termination of her employment. The respondents did not file written submissions or a copy of the Employment Standards claim.
ANALYSIS AND DECISION
Request to Dismiss for Delay
9Section 34 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.
10I do not accept the applicant’s claim that by filing her Application on June 7, 2010 the applicant met the one year time limit set out in section 34(1). The requirement is to file an Application within one year of the last incident of alleged discrimination. I find that the last alleged incident of discrimination was the termination of the applicant’s employment on May 21, 2009. This was the applicant’s last day at work. The fact that the applicant may have received wages for another two weeks (until June 6, 2009) does not, in itself, mean that a further incident of discrimination took place after May 21, 2009.
11The Code clearly states in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal sets out what is required to establish that delay has been incurred “in good faith”:
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 applications to provide a reasonable explanation for the delay
12The applicant submits that the termination of her employment caused her great stress which led to a medical condition affecting her mouth and throat. The applicant submits that this stress also led to a loss of appetite, sleep difficulties and a general despondency. The applicant describes not being able to get out of bed and a loss of self confidence. The applicant states she also had minor surgery. The applicant refers to her attending physicians and to her medications. The applicant submits that it is the cumulative effect of this stress and its emotional, mental and physical effects that accounts for the delay in the filing of her Application.
13I do not find that the applicant’s submissions establish that the delay was incurred in good faith pursuant to section 34(2) of the Code. As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317 while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360. I accept that the applicant has had difficulties with a medical condition as well as managing various effects of stress since the termination of her employment. It appears that the applicant has had difficulties with some of the activities of daily living. However, I do not find this constitutes evidence that her condition has been so debilitating that it prevented her from pursuing her rights under the Code in a more timely fashion.
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 anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579 (Can LII). Consequently, the Application is dismissed.
15Given this decision I do not need to rule on the respondents’ request to defer the Application
Dated at Toronto this 20th day of April, 2011.
“Signed by”
Eric Whist
Vice-chair