Haggett v. Rehabilitation Network Canada Inc., 2012 HRTO 1221

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fred Haggett

Applicant

-and-

Rehabilitation Network Canada Inc. and Marlene Cabral

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 21, 2012

Citation: 2012 HRTO 1221

Indexed as: Haggett v. Rehabilitation Network Canada Inc.

appearances

Fred Haggett, Applicant ) Self-represented

Rehabilitation Network Canada Inc. ) Jeremy Hann, Counsel

and Marlene Cabral, Respondents )

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed because it was not filed with the Tribunal within the one-year statutory deadline, and/or because there is no reasonable prospect that it will succeed. These issues were addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2The applicant, Fred Haggett, is an injured worker. In 2004, the Workplace Safety and Insurance Board (“WSIB”) decided that he was entitled to Labour Market Re-entry (“LMR”) services, and referred him to the organization respondent, Rehabilitation Network Canada Inc., which is a company that provides LMR services. The individual respondent, Marlene Cabral, who was employed by the organization respondent, was the applicant’s caseworker.

3As part of the LMR services provided by the respondents, the applicant participated in academic upgrading, including taking courses at a college. In or about April 2008, the respondents requested that the applicant sign a consent form, which in their view, was required under privacy legislation in order for them to provide information to the college and other third parties about the applicant. The applicant refused to sign the consent form because, in his view, it was too broad and a violation of his right to privacy.

4Between April and mid-July 2008, the applicant and the respondents attempted to negotiate an agreement on the wording of the consent form. On July 16, 2008, the organization respondent terminated its relationship with the applicant on the basis that he refused to sign the consent form and was therefore unwilling to participate in the LMR plan. The WSIB subsequently terminated the applicant’s LMR entitlements for the same reasons.

5The applicant appealed the WSIB’s decision, and on October 19, 2009, an Appeals Resolution Officer found that the LMR program was terminated prematurely, and decided to reinstate his LMR entitlements. The WSIB subsequently informed the applicant that he would have to sign the organization respondent’s consent form in order to continue receiving LMR services from the organization respondent, and provided him with a copy of the form that the organization respondent had faxed to the WSIB on April 28, 2010.

6On January 5, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him because of his disability with respect to services and contracts, and subjected him to reprisals. In Section 8 of his Application (“What Happened”), the applicant stated:

Slander, liable, misrepresentation, professional misconduct, undue hardship, violations of doctor’s notes, privacy and policy’s, denial of natural justice, abuse of authority, intimidation, permanent impairment, mental anguish.

7In section C8 of his Application (“Explain why you believe you were discriminated against based on your disability or a perceived disability.”), the applicant stated: “Informed persons in place regarding health issues. They refused my basic needs and rights.”

8In section C27 of his Application (Put an “X” in the box that applies to you.), the applicant checked off: “I claimed or enforced my rights under the Code.” In section C29 (“Please explain why you believe you were reprised against.”), he stated: “Attached dated July 30, 2010.” A letter of the same date that was attached to his Application stated:

I believe that reprisals that were taken against me are documented through many steps to have others intervene to resolve all disputes mentioned in my application.

(...)

Rehabilitation Network Canada Inc. and the Workplace Safety and Insurance Board acted together to discredit me without merit and harassed me to give up all my rights to privacy and health care for a workplace injury.

(...)

To ensure that I had witnesses to the actions of discrimination taken against me I retained the help of the Ombudsman of Ontario to help mediate a solution to the infringement of my rights. After coming to an agreement both the WSIB and Rehabilitation Network Canada Inc. refused to accept this intervention…. I then endured further retaliation and harassment having this agreement refused and to again having my benefits cut off and any concerns for my well being ignored.

9The applicant also attached a number of other documents to his Application, including letters to and from the organization respondent, the WSIB, and the Office of the Ontario Ombudsman. Based on the Application and the documents attached to it, the applicant appears to be making two allegations against the respondents:

1. Between 2004 and July 2008, the respondents failed to accommodate him, particularly with respect to health-related difficulties he was having with his course load at a college.

2. The respondents violated his right to privacy by requesting that he sign a broadly-worded consent form in April 2008, by refusing to accept an amended consent form signed by him, by terminating LMR services in July 2008 because he refused to sign their form, and by refusing to reinstate LMR services in April 2010 unless he signed their form.

10On September 29, 2011, the respondents filed a Response and a Request for an Order During Proceedings, which denied the allegations of discrimination and reprisal, and requested that the Application be dismissed because it is untimely. On December 15, 2011, the applicant filed a Reply and Response, which denied that his Application was untimely.

11On February 22, 2012, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it is untimely and/or has no reasonable prospect of success.

12The summary hearing took place on June 14, 2012. The respondents filed written submissions in advance of the hearing, and both parties made oral submissions at the hearing.

TIMELINESS

13The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

14In his submissions, the applicant stated that his Application is timely because the last alleged incident occurred in April 2010 when the organization respondent informed the WSIB that it would not reinstate him into its LMR program unless he signed its consent form, which it faxed to the WSIB on April 28, 2010. He also stated that he did not file an Application within one year of July 16, 2008, when the respondents terminated their relationship with him, because he was waiting for his WSIB appeal and inquiries that he had made to the Office of the Information and Privacy Commissioner, to be completed.

15The applicant also stated that he initially filed his Application with the Tribunal on August 3, 2010, but it was returned to him by the Tribunal for completion, and that January 5, 2011 is the date that he returned the final version of his Application to the Tribunal. Based on my review of the Application, it appears that Tribunal’s Registrar deemed it to have been filed on January 5, 2011, but there is also a Tribunal stamp on one page of the Application dated August 3, 2010, which means that the Tribunal received part of the Application or an incomplete version of it on that date.

16The first issue to consider is whether the alleged incidents of discrimination and reprisal in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360, at para. 9. In the case at hand, there was a break of more than one year between the organization respondent’s decision to terminate the applicant’s LMR services in July 2008, and its refusal to reinstate his LMR services unless he signed the consent form in April 2010. As such, I find that the April 2010 alleged incident is not part of a series of incidents, and that the 2004 to July 2008 alleged incidents are beyond the one-year statutory deadline, regardless of whether the Application was filed on August 3, 2010 or January 5, 2011.

17The second issue to consider is whether the applicant’s delay in filing his Application with respect to the 2004 to July 2008 alleged incidents was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was 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 applicants to provide a reasonable explanation for the delay….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 428, at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, at para. 21.

18The Tribunal has also addressed a situation where an applicant delayed filing her human rights Application because she was waiting for another legal proceeding to conclude. In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated at para. 23:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the [Ontario Labour Relations Board] and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. [Emphasis added]

19I am not satisfied that the applicant’s more than one-year delay in filing his Application with respect to the 2004 to July 2008 alleged incidents was incurred in good faith. In my view, the applicant could have filed a timely Application with the Tribunal while continuing to pursue his WSIB appeal and inquiries with the Office of the Information and Privacy Commissioner.

20In view of my finding that the applicant’s delay in filing his Application with the Tribunal with respect to the 2004 to July 2008 alleged incidents was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. The allegations in the Application relating to incidents between 2004 and July 2008 are therefore dismissed.

21In the result, the only allegation that remains outstanding in the Application is the applicant’s allegation that the organization respondent informed the WSIB that it would not reinstate him into its LMR program unless he signed its consent form, which it faxed to the WSIB on April 28, 2010.

REASONABLE PROSPECT OF SUCCESS

22Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

23Furthermore, in Dabic, supra, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

24In his submissions, the applicant stated that his allegation about being required to sign the consent form has a reasonable prospect of success. Specifically, he stated that the respondents’ request was discriminatory on the ground of disability because they were trying to obtain medical information from him which was not required and was a violation of his right to privacy.

25In my view, this allegation has no reasonable prospect of success. I recognize that a violation of an individual’s privacy can be discriminatory in certain circumstances, but the applicant did not explain how requiring that he sign a consent form amounted to a Code violation.

26At best, the applicant appears to be alleging that if he had signed the consent form, the respondents would have discriminated against him by disclosing his disabilities to third parties. Speculation that discrimination may occur cannot be reasonably considered to amount to a Code violation.

27With respect to the applicant’s allegation of reprisal, section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

28The applicant did not explain how the respondents retaliated against him for claiming or enforcing his rights under the Code, or instituting and participating in proceedings under the Code. As such, what he alleged cannot be reasonably considered to amount to a Code violation.

ORDER

29The Application is dismissed.