Clowes-Haichuck v. Canada Safeway Ltd., 2012 HRTO 1060

Clowes-Haichuck v. Canada Safeway Ltd.

File No.: 2011-09835-I Date: 2012-05-29 Citation: 2012 HRTO 1060

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coreen Clowes-Haichuck Applicant

-and-

Canada Safeway Limited and United Food & Commercial Workers Canada Locals 175 & 633 Respondents

Adjudicator: Ena Chadha Date: May 29, 2012 Citation: 2012 HRTO 1060 Indexed as: Clowes-Haichuck v. Canada Safeway Limited

WRITTEN SUBMISSIONS

Coreen Clowes-Haichuck, Applicant: Self-Represented Canada Safeway Limited, Respondent: Paul Young, Counsel United Food & Commercial Workers Canada, Locals 175 & 633: Erin Wallace, Counsel

DECISION

INTRODUCTION

1. The applicant filed this Application on September 9, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination and reprisal with respect to employment on the basis of disability. In answering Question 7 of Form 1, the applicant indicated that the last incident of discrimination occurred in June 2007.

2. The respondents filed their respective Responses on December 22, 2011.

3. On January 5, 2012, the Tribunal forwarded the Responses to the applicant and in its cover letter the Tribunal indicated that the respondent employer requested that the Application be dismissed pursuant to section 45.1 of the Code. The Tribunal omitted to note that both respondents also asked that the Application be dismissed due to delay.

4. The applicant filed a Reply on February 16, 2012, wherein she touched on the issue of delay.

5. On March 8, 2012, the Tribunal received a Request for Order During Proceedings ("Request") from the respondent union seeking that the Application be dismissed due to untimeliness and failure to plead a prima facie case or disclose a reasonable prospect of success as against the respondent union. The Request included written submissions on these preliminary issues.

6. The Tribunal determined that it was appropriate to receive submissions from all of the parties with respect to the issue of delay and section 34 of the Code. The Tribunal issued a Case Assessment Direction setting out timelines for filing of submissions.

7. The parties filed extensive submissions in accordance with the Case Assessment Direction and the Tribunal has carefully reviewed the parties' materials in reaching this Decision.

BACKGROUND

8. The applicant commenced her employment with the respondent employer in 1981. In 1989, the applicant was seriously injured in a car accident. The applicant was absent from work as a result of this accident and eventually her employment was terminated in 1991. The applicant was re-hired in 1994 as a new employee. The applicant was again absent from work from 1995 until 1998, following which she was absent for maternity leave. The applicant returned to work in 1999.

9. The applicant alleges that she sought accommodation in 2004 from the respondent employer, but nothing transpired. The applicant worked until she took a leave of absence for medical reasons in 2006. The applicant alleges that from 2006 to 2007, a family member serving as her advocate attempted to address her accommodation needs with the respondent employer; however, no accommodation was provided. The applicant alleges that due to financial setbacks she was forced to apply for Canada Pension Plan disability benefits. The applicant's employment was terminated in 2007 due to her absence from work. The applicant filed a grievance for unjust termination in June 2007.

10. The applicant alleges that she repeatedly sought the union's assistance from 1989 to 2004 for her first dismissal, loss of seniority and lack of accommodation to no avail. In particular, the applicant alleges that sometime after 2001 she approached the union for assistance and was advised that a grievance was filed, but later informed that the union lawyers said she had "no case". The applicant alleges that she contacted the Ontario Human Rights Commission in 2001 and 2003 and was informed that she was required to exhaust all avenues with the employer and union before filing a complaint. The applicant alleges that because of the car accident she suffers from significant cognitive impairments which made it extremely difficult for her to pursue her Application in a timely manner.

11. In 2011, an arbitration hearing into the applicant's termination grievance was held before Arbitrator C. Gordon Simmons. At the arbitration hearing, the applicant submitted her own statement of damages that she claimed for the alleged unjust dismissals, the difference in salary and benefits for loss of original seniority and damages for the violation of her human rights and failure to accommodate. On June 1, 2011, the Arbitrator issued a bottom line ruling, without reasons, finding that applicant's grievance for unjust termination was dismissed because of lack of jurisdiction over the events prior to 1998. The respondent employer acknowledged, and the Arbitrator confirmed, that severance was owed based on the applicant's last position with the respondent employer. A written decision was released on July 15, 2011, wherein the Arbitrator noted that since the applicant did not file any grievance against the respondent employer for failing to provide accommodation in accordance with the Code in either 2004 or 2006/2007 her claim for human rights damages was unsustainable.

DECISION

12. For the reasons that follow, I find that the Tribunal does not have jurisdiction over the Application because the allegations relate to events that occurred beyond the Code's one-year limit and the delay was not incurred in good faith.

Delay

13. Section 34 of the Code provides:

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.

14. In examining the issue of delay, the Tribunal must first determine whether the application was filed more than a year after the incident or the last incident in a series of incidents of alleged discrimination. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.

15. The initial onus rests on the applicant to show that any delay in filing her Application was incurred in good faith: Klein v. Toronto Zionist Council, 2009 HRTO 241 [CHRR Doc. 09-0358]. The applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and cannot proceed with an application: see for example, Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 [CHRR Doc. 08-1094] and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 [CHRR Doc. 09-2217].

16. If the applicant is able to establish good faith, the onus shifts to the respondent to demonstrate that it will suffer substantial prejudice as a result of the delay in filing the Application. In assessing substantial prejudice, some factors that a Tribunal may consider include the length of the delay and the impact of the delay on the party's ability to make full answer and defence, such as the availability of witnesses and documents and the ability to investigate and retrieve evidence: AlSaigh v. University of Ottawa, 2012 HRTO 2 [CHRR Doc. 12-0502].

17. On review of the material before me, I am satisfied that this Application may not proceed. I do not accept that the applicant has satisfied the onus the Tribunal requires to show that the delay in the filing of an application was incurred in good faith pursuant to section 34(2) of the Code.

18. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay in bringing their human rights matters forward: Klein v. Toronto Zionist Council. The mandatory one-year limitation period is consistent with the Code's objective that human rights claims should be dealt with justly 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.

19. In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant's ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 [CHRR Doc. 09-0167] and Doyle v. Canarm, 2009 HRTO 674 [CHRR Doc. 09-0920].

20. The events that occurred during the applicant's employment which form the basis of the alleged failure to accommodate span over a decade and a half and the last alleged event took place over three years prior to the filing of this Application. In explaining the reasons for her delay in filing the Application, the applicant submits that there was no deliberate delay on her part as she was unaware of the Code's time limitation, she made efforts and sought the assistance of various other entities, including her union, the Ontario Human Rights Commission and other government offices, and that she has suffered for many years because of her cognitive disability.

21. The Tribunal has determined that, in order to demonstrate good faith, the applicant must show something more than simply an absence of bad faith. As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 [CHRR Doc. 09-1698], 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.

22. The applicant claims that she was unaware of the Code's time limits and as such, did not intentionally delay in filing the Application. In Lutz v. Toronto (City), 2009 HRTO 1137 [CHRR Doc. 09-1577] at para. 8, the Tribunal adopted and quoted the reasoning of the Ontario Court in Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.) that "it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights." Therefore, while ignorance of the implications of the Code's limitation period may in certain circumstances amount to good faith, the applicant must also establish that she had no reason to make inquiries about her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628 [CHRR Doc. 10-2278].

23. With respect the applicant's contention that she approached other entities and agencies in seeking assistance and redress, it is noteworthy that the applicant indicates that she contacted the Commission in 2001 and 2003. The applicant did not establish that she made any inquiries about her rights at any time around or after the termination of her employment in 2007. Based on the documentary materials, it appears that the applicant focused her attention on securing her pension and participating in the arbitration and did not attempt to pursue a human rights application. The applicant has not provided a reasonable explanation for the delay, or demonstrated that she acted with due diligence, following her 2007 dismissal.

24. I am also not convinced that the applicant's medical status precluded her from pursuing her rights under the Code. As stated in the Tribunal's decision in Dionne v. Toronto (City), 2011 HRTO 317 [CHRR Doc. 11-0817], 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 the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes; Downer v. Little & Jarrett, 2010 HRTO 992 [CHRR Doc. 10-1182], and Savage v. Toronto Transit Commission, 2010 HRTO 1360 [CHRR Doc. 10-2010].

25. I cannot conclude that the applicant was unable due to her disability to make inquiries about options for pursuing her rights under the Code. As noted in Kelly v. CultureLink Settlement Services, "[i]n several cases in which applicants raised disability as a contributing factor to lateness in filing Applications, the Tribunal has taken into account the applicant's ability to undertake other legal proceedings, despite his or her disability, as a factor in the "good faith" analysis." As such, in light of her claim that she contacted the Ontario Human Rights Commission in 2001 and again 2003, as well as sought union support in 2001 and 2007, it is not clear to me that applicant was unable because of her disability to secure advice about her rights.

26. While the medical documentation indicates that the applicant was struggling with various health issues, I do not find that her condition was so debilitating that it prevented her from addressing her rights under the Code in a more timely fashion. For example, although the applicant's medical reports document her history of memory impairment since the car accident, the recent medical reports also indicate that the applicant was actively volunteering and attempting to address her workplace issues with the assistance of a family advocate. The documentary information provided by the applicant indicates that she and her advocate undertook various efforts to correspond and communicate with union representatives, numerous individuals, government offices, etc. to address her workplace concerns through informal and formal grievances and pursued a disability pension, all of which took place prior to filing this Application.

27. Moreover, the parties' submissions confirm that the applicant was, in fact, able to pursue her rights (including concerns that are now raised in the Application) from 2007 and onwards through the grievance and arbitration. The materials indicate that by 2004 and again in 2006 that the applicant had formulated her concerns as an issue of failure to accommodate and sought to pursue redress in the arbitration hearing on this basis. Given this evidence, I am unable to find that the applicant's disability precluded her ability to undertake legal proceedings.

28. The applicant further submits that the delay was caused by the fact she was awaiting the conclusion of the arbitration process. The Tribunal has repeatedly pointed out that waiting for other legal proceedings to conclude before pursuing one's right under the Code will generally not constitute a valid explanation for delay in filing a timely application: see Cartier v. Northeast Mental Health Centre; Miller v. Prudential Lifestyles Real Estate; Lutz v. Toronto (City); Kelly v. CultureLink Settlement Services, 2010 HRTO 508 [CHRR Doc. 10-0601]; Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578 [CHRR Doc. 10-2228] and Abutalib v. Toronto Police Services Board, 2010 HRTO 1697 [CHRR Doc. 10-2347].

29. In conclusion, I am not persuaded that the delay in bringing this Application was incurred in good faith.

30. Both respondents have asserted prejudice because of fading memories and loss of employment documentation arising from the substantial delay in this case. As the applicant has not satisfied that the delay in filing this Application was incurred in good faith, it is unnecessary for me to consider whether any actual prejudice will result to the respondents given the significant delay in filing this Application: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579 [CHRR Doc. 09-0794]. Nevertheless, I have real concerns that the respondents' ability to respond to the Application may be prejudiced given the extended chronological scope of the events and allegations and the significant length of the delay in this case.

CONCLUSION

31. For all of the above-noted reasons, the applicant has not satisfied me that the delay in filing the Application was in good faith within the meaning of section 34(2) of the Code. Accordingly, the Tribunal does not have jurisdiction to proceed and this Application is dismissed for delay.

Dated at Toronto, this 29th day of May, 2012.

"signed by"

______________________________________

Ena Chadha Vice-chair