HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Martin Griffey
Applicant
-and-
Drs. Paul and John Rekai Centre and Mary Hoare
Respondents
DECISION
Adjudicator: Geneviève Debané
Date: June 26, 2012
Citation: 2012 HRTO 1256
Indexed as: Griffey v. Drs. Paul and John Rekai Centre
APPEARANCES
Martin Griffey, Applicant
Self-represented
Drs. Paul and John Rekai Centre and Mary Hoare, Respondents
Janice Rubin, Counsel
Introduction
1This is an Application filed on June 22, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of race, colour ancestry, ethnic origin, sexual orientation and reprisal. On November 5, 2010 the respondents filed a joint Response denying the allegations in the Application.
2In a Case Assessment Direction dated February 16, 2012, the Tribunal cancelled the three day merits hearing which was scheduled to be heard on April 2, 3 and 4, 2012. The Tribunal directed instead that a number of preliminary issues would be addressed on April 2, 2012, including;
a. Whether the Application in whole and/or in part should be dismissed because of delay;
b. Whether the Application should be dismissed as having no reasonable prospect of success;
c. The applicant's outstanding Request for production; and
d. The respondent's outstanding Request to remove Mary Hoare as a respondent ("Request to remove the personal respondent").
3The in-person preliminary hearing was held on April 2, 2012. It was agreed at the commencement of the hearing by the parties that the hearing would be focused on submissions on the first two issues only and that the other two issues would be dealt with at a later date if necessary. At the preliminary hearing the parties made detailed written and oral submissions on these two remaining issues. This Decision addresses the issue of whether the Application has no reasonable prospect of success and whether it is timely.
Chronology
4The applicant was employed by Drs. Paul and John Rekai Centre (the "employer" or the "organizational respondent") since September 2006 until he gave his notice of resignation on March 13, 2009, his last day of work being June 12, 2009.
5The applicant alleges that he witnessed discriminatory remarks that were not directed at him, in April 2008, June 2008, the fall of 2008 and December 2008 (the "incidents of alleged discrimination"). At the hearing the applicant advised that another employee had lodged a complaint with respect to these incidents of alleged discrimination. Eventually, the organizational respondent retained the services of a third party neutral to investigate this complaint whose findings did not support the allegations of discrimination. The applicant did not participate in this investigation despite the fact that the investigator allegedly contacted the applicant's solicitors in the summer of 2010. There is some dispute between the parties as to why the applicant did not participate in the investigation, which does not have to be resolved for the purposes of these preliminary issues.
6While employed with the organizational respondent the applicant never made a complaint about the incidents of alleged discrimination. However, on September 14, 2009, three months after his last day of work, the applicant sent a four page complaint letter to the organizational respondent's Board (the "Complaint letter"). The applicant characterizes this letter as a post exit feedback letter. Having reviewed this letter I find that there is no reference to any of the alleged incidents of discrimination. The Complaint letter addresses a number of issues with respect to the governance and management of the organizational respondent.
7On September 30, 2009, Peter Rekai, the organizational respondent's Chair responded to the applicant's Complaint letter.
8On November 24, 2009, the applicant wrote a second letter which once again detailed extensive issues with respect to the governance of the organizational respondent. I have reviewed this letter and it does also does not raise any of the alleged incidents of discrimination.
9On March 26, 2010, the applicant retained legal counsel. On May 14, 2010, through a letter written from his solicitors, for the first time, the applicant raises the issues of alleged discrimination.
10The Application was filed on June 22, 2010.
No Reasonable Prospect of Success
11The respondents argued that the only allegations in the Application that are Code-related are with respect to the alleged incidents of discrimination. All of the other allegations in the Application, including issues with respect to the governance and management of the organizational respondent are not Code-related and should therefore be dismissed as having no reasonable prospect of success.
12Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
13Having reviewed the materials filed by the parties, I find that the only allegations in the Application which are Code-related are the incidents of alleged discrimination and the organizational respondent's alleged failure to investigate his Complaint. All of the other allegations in the Application detail a number of issues with respect to the management and the governance of the organizational respondent including allegations of autocratic managerial styles, issues between the Board and senior management, and patient standards of care. None of these other issues are within the Tribunal's power to decide.
Delay
14The Tribunal's power to hear and determine human rights applications is based on the Code. Section 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.
15The first issue that the Tribunal must determine is the date of the last incident of discrimination.
16I note that in his written submissions entitled "Opening Statement", the applicant states:
The last in a series of 4 witnessed clear Code violations made by the Personal Respondent occurred in December 2008. This constituted part of a pattern of similar conduct.
17The applicant argues the respondents' failures to adequately respond to his allegations of discrimination are further acts of discrimination. In the Application the applicant alleged that the last date of discrimination is on November 24, 2009 (the date of his second letter to the organizational respondent). At the preliminary hearing the applicant took the position that the "organizational respondent's failure to adequately respond to my May 14, 2010 correspondence is a further act of discrimination".
18The respondents' position is that the last incident of alleged discrimination occurred in December 2008, approximately 18 months before the Application was filed. The respondents rely on the cases of Colbeck v. Pinecrest-Queensway Community Health Centre, [2010] HRTO 1435 ("Colbeck") and Heslin v. Univar Canada Ltd., [2010] HRTO 1885 ("Heslin") for the proposition that the applicant's post-resignation communications does not extend the one year time-limit. The respondents also note that the applicant did not raise any of the alleged incidents of discrimination until May 14, 2010.
19I find that the applicant did not raise the issue of alleged discrimination in either his Complaint letter or his November 24, 2009 letter. Therefore, the applicant's argument that the corporate respondent's alleged failure to investigate is a further incident of discrimination cannot succeed because he did not raise any human rights issues in either of these correspondences.
20I do find, however, that the applicant did raise the alleged incidents of discrimination in the May 14, 2010 letter. I make the following findings of fact with respect to this letter;
a. The last alleged incident of discrimination described in the letter occurred in December 2008 over 17 months before the letter was written;
b. This is clearly a post-termination demand letter, which also alleges that the applicant was constructively dismissed; and
c. The applicant is seeking damages for reasonable notice, general and punitive damages.
21Having reviewed the May 14, 2010 letter, though the applicant did raise the alleged incidents of discrimination, I find that the applicant cannot unilaterally create a series of events by sending a demand letter almost seventeen months after the last incident of alleged discrimination. I concur with the reasoning in the Heslin decision. To accept the applicant's argument would in effect render the time-limits imposed by the Code meaningless and capable of revival by the applicant simply sending a demand letter to a respondent. This would defeat the purposes of the Code to deal promptly with allegations of discrimination. Therefore, I find that the last incident of alleged discrimination occurred in December 2008 and this Application was filed beyond the one year time-limit.
Was the delay incurred in Good Faith?
22The Tribunal has the jurisdiction to accept an Application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay. Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.
23The applicant argued, in the alternative that the Tribunal found that the Application was filed outside of the one year time-limit, that the delay was incurred in good faith. The applicant submitted that he did not file the Application sooner because he was trying to obtain funding for his legal fees from his association and that he was trying to resolve the matter directly with the respondent and that the corporate respondent did not have whistle-blower protection.
24Having reviewed the circumstances of this case I do not accept that the delay was incurred in good faith. With respect to the applicant's allegation that he was waiting to determine if he could get funding for his legal fees, I find that this is not a reasonable excuse. He received notification from his association on January 29, 2010 that he had been approved to be reimbursed for some legal fees but it was not until March 2010 that he retained counsel. Further, I note the Application was filed in June 2010 a further three months after the applicant retained legal counsel.
25With respect to the fact that the corporate respondent had no whistle-blower protection, I note that the applicant was no longer working for the respondents and that as early as September 2009, he raised some serious allegations against the respondent without fear of reprisal. I therefore, do not accept this as a reasonable explanation for the delay in the filing of the Application.
26I find that the applicant did not pursue his right to file an Application in a diligent manner and has not provided a reasonable explanation for the delay. He significantly delayed in raising any human rights issues, retaining legal representation and then ultimately filing this Application. For these reasons I do not accept the applicant's explanations and therefore the delay was not incurred in good faith.
27Having found that the delay was not incurred in good faith I do not need to deal with the issue of prejudice to the respondents.
Order
28I find that the Application is outside of the jurisdiction of the Tribunal because it was not filed within one year of the last incident of discrimination. The Application is dismissed.
Dated at Toronto, this 26th day of June, 2012.
"Signed by"
Geneviève Debané
Vice-chair