Ward-Taylor v. Instachange Displays Limited, 2012 HRTO 1282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicole Ward-Taylor

Applicant

-and-

Instachange Displays Limited and Marguerite O’Donnell

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Decision Date: June 28, 2012

Citation: 2012 HRTO 1282

Indexed as: Ward-Taylor v. Instachange Displays Limited

APPEARANCES

Nicole Ward-Taylor, Applicant

Richard Miller, Counsel

Instachange Displays Limited and Marguerite O’Donnell, Respondents

Erik Marshall, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex (including pregnancy) and disability. The applicant was terminated from her employment on February 19, 2010. Her Application was signed on February 16, 2011, and date stamped as filed with the Tribunal on February 23, 2011.

2The respondents filed a joint Response in which they request that the Tribunal dismiss the Application on the basis that it was filed more than one year after the last incident of alleged discrimination. The applicant filed a Reply.

3By letter dated June 8, 2011, the Tribunal advised the parties that it would schedule a half-day conference call to consider whether the Application should be dismissed on the basis of delay. It further noted that the parties could deliver any additional documentation or case law they wanted the Tribunal to consider no later than 14 days before the hearing. A Notice of Confirmation of Hearing dated September 26, 2011, was issued to the parties scheduling a conference call hearing (“the hearing”) for November 9, 2011; it was subsequently rescheduled for December 7, 2011.

4The hearing was held on December 7, 2011 and all the parties participated through their counsel. The respondents filed submissions and case law dated November 23, 2011; the applicant filed submissions dated November 30, 2011 and case law dated December 2, 2011.

5During the hearing, several preliminary issues were identified by the parties. First, the applicant raised concerns about without prejudice settlement documents being submitted by the respondents to the Tribunal. The applicant requested that the Tribunal not consider these documents as they were covered by settlement privilege. The respondents submitted that the documents were submitted to prevent the applicant from asserting that she was not aware of her legal rights. The documents established, the respondents submitted, that in February 2010, the applicant was threatening to retain a lawyer and commence legal proceedings before the Tribunal and the Ontario Labour Relations Board. The applicant did not dispute this information and this information was included on this basis.

6The respondents submitted that the Tribunal ought not consider the applicant’s materials because they were filed late and outside the time frames as directed by the Tribunal. The applicant apologized for the late filing and submitted it occurred because the Human Rights Legal Support Centre (“the Centre”) had recently been retained by the applicant. The respondents did not suffer any prejudice, the applicant asserted, and they received the applicant’s materials a week before the hearing date. The Tribunal permitted this documentation to be relied upon by the applicant.

7During the hearing, the applicant referred to a document that had been received that morning from Canada Post containing the signature of someone signing on behalf of the Tribunal to receive the Application. The applicant had requested this information from Canada Post several weeks before the hearing and had already submitted tracking information from Canada Post prior to the hearing. The respondents objected to the introduction of the documentation. During the hearing, the Tribunal ruled that the document was not admissible given the timing of the applicant’s request from Canada Post, the apparent prejudice to the respondents, and noting that documentation showing that the Application was received by the Tribunal on February 22, 2011, had already been filed.

THE APPLICANT’S SUBMISSIONS

8The applicant submits that her Application was filed within the mandatory one-year limitation period. The applicant’s termination date, February 19, 2010, is the last incident of alleged discrimination and the applicant had one year from February 19, 2010 to file her Application. The applicant’s baby was born on November 16, 2010.

9The applicant, who was self-represented at the time of filing her Application and is not a lawyer, submits that she sent her Application to the Tribunal before the deadline date. In doing so, she reviewed the instructions on the Application form itself and noted there was nothing in those instructions to indicate that her Application would be considered late if it were not filed by Saturday, February 19, 2011. The Tribunal should not expect a self-represented applicant to consult with case law to find out the consequences of filing beyond the one-year period, the applicant submits. For a self-represented applicant, the applicant submits, there is no difference between delivering and filing an application.

10The applicant sent her Application via Canada Post’s Xpresspost service on Friday, February 18, 2011. According to the Canada Post information that the applicant filed with the Tribunal and provided to the respondents, the Application was received at the Tribunal and signed for on February 22, 2011, rather than February 23, 2011, as otherwise noted by the Tribunal’s date stamp.

11Sending her Application via Xpresspost is equivalent, the applicant submits, to sending it by courier, not regular mail. Xpresspost is different from regular mail because the applicant paid an additional fee for this faster service, that requires a signature upon delivery, and this is equivalent to a courier service provided by a private courier company. The applicant does not know if Canada Post provides same-day delivery service.

12The deadline for filing her Application, the applicant submits, was February 19, 2011. However, February 19 was a Saturday and is considered a “holiday” pursuant to the Tribunal’s Rules of Procedure (“the Rules”) as was Sunday, February 20, 2011. Monday, February 21 was also a holiday pursuant to the Rules because it was Family Day.

13Given that the Tribunal’s offices were not open on February 19, 20 and 21, the applicant submits that her Application was not untimely as the Xpresspost documentation shows that the Tribunal received the Application on February 22. Alternatively, she submits, if it was untimely, the delay in filing the Application was minimal, of a day or two. She asserts that she acted in good faith because she sent her Application before the deadline date, used a fast delivery method, and believed that her Application would be received by the deadline. The applicant asserts that any delay in filing her Application is attributable to either Canada Post or the Tribunal. She submits that Canada Post did not deliver the Application within the required time frame, or that the Tribunal made an administrative error in signing for the Application on February 22, 2011 yet indicating by date stamp that it was not received until February 23, 2011.

14Finally, the applicant submits that there is no prejudice, let alone substantial prejudice, to the respondents for a delay of one or two days. The applicant submits that upon her termination, she made the respondents aware of potential legal action being taken against them and the respondents should have taken steps to preserve their evidence at that time.

THE RESPONDENTS’ SUBMISSIONS

15The respondents submit that the Application was filed beyond the mandatory one-year limitation period under the Code. They assert that February 19, 2010, is the last incident upon which the Application is based and on which date the applicant was aware not just of her termination but the existence of a potential human rights complaint.

16The Application should have been filed by February 18, 2011, the respondents assert because section 34(1) of the Code uses the word “within” rather than “up to and including”. From the documentation produced by the applicant about when and how she sent the Application, the respondents submit that there is no evidence that the Tribunal received the Application on February 22, 2011, rather than February 23, 2011. The Tribunal should draw an adverse inference against the applicant for not calling “Judy G” to testify as to when she signed for the Xpresspost package containing the Application and to confirm she worked for the Tribunal.

17The respondents submit that on the Application itself, the applicant herself noted that she was filing it almost 12 months after the last alleged incident “to allow time for [her] … to have a baby and a short bonding period before dealing with the stresses caused by the process to follow”, and, as stated in her Reply, for “personal reasons”. The respondents assert that the Tribunal has not accepted ignorance of the law as constituting a good faith reason, which, they submit, is what the applicant is asserting when she states that she did not understand the procedures around the filing of her Application. Further, the Tribunal’s materials make it clear that it does not provide legal advice with respect to the application process.

18The onus is on the applicant to establish a good faith reason to explain the delay, which, the respondents submit, she has not established. The Tribunal has dismissed other applications where the length of delay in filing an application, like in this case, is very short, in the absence of a good faith explanation. The applicant has not raised a Code-related reason for her delay in filing her Application. Having a baby has not been accepted by the Tribunal as a good faith justification for delay.

19The respondents submit that documentation delivered by Canada Post is mail rather than courier services as used by the Rules, including material sent using Xpresspost. Couriered mail can be delivered the same day, but material delivered using Canada Post’s services cannot. The applicant erroneously relied upon Canada Post to deliver her Application by the deadline without receiving a guarantee of delivery from Canada Post. The applicant’s reliance on an unreliable delivery method does not constitute good faith as required by section 34(2) of the Code.

20The respondents assert that they would be substantially prejudiced if the Application were permitted to proceed despite the delay. In their written submissions, at para. 18, the respondents submitted:

… that the Tribunal should find as it did in Corrigan [v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424], wherein it stated:

I accept the respondents’ submission that the delay in bringing the allegations forward prevented them from taking steps to preserve evidence and/or refresh/record their memories of the events, and that they would be compromised in their ability to conduct any meaningful investigation into the events at this stage.

21At the hearing, the respondents stated that they have been prevented from “taking steps from recording events” in support of their prejudice submissions.

THE LAW

22Section 34(1) of the Code requires that an Application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(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.

23The Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, at section 88(2) specifies that Sunday and Family Day are “holidays”. Further, it includes subsections 89(1)-(5) pertaining to the calculation of time. Those subsections state:

89(1) Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday.

(2) Time limits for registering or filing documents or for doing anything else that expire on a day when the place for doing so is not open during its regular hours of business are extended to include the next day the place is open during its regular hours of business

(3) A reference to number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days.

(4) A period of time described as beginning or ending on, at or with a specified day includes that day.

(5) A period of time described as beginning before or after a specified day excludes that day.

THE TRIBUNAL’S RULES

24The Tribunal’s Rules provides:

1.4 In these Rules,

“holiday” means any Saturday, Sunday, or other day on which the Tribunal’s offices are closed.

1.09 Where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.

1.10 When the time for doing an act expires on a holiday, the act may be done on the next day that it not a holiday.

1.22 Where a document is delivered by a party or sent by the Tribunal, receipt is deemed to have occurred when delivered or sent:

a) by mail, on the fifth day after the postmark was due;

c) by courier, on the second day after it was given to the courier…

ANALYSIS

25In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

26As the Tribunal explained in Gagne v. Maximum Mining, 2010 HRTO 689, at paras. 9 and 10:

Although the delay is short, 6 days, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith. The 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. 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 to determine the Application. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith.

In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner, even if the delay is a relatively short one (see Cartier v. Northeast Mental Health Centre, 2008 HRTO 1670).

See also Moffat v. Northampton Group, 2010 HRTO 519, at para. 14 and Miller, supra.

27Further, the Tribunal has observed that in providing a reasonable explanation, “[t]he term ‘reasonable’ has both objective and subjective elements, both of which must be considered within the context of the Code”. See Kelly v. CultureLink Settlement Services, 2010 HRTO 977, at para. 63.

28In this case, I find that the Application was due on Saturday, February 19, 2011, and not February 18, 2011, as asserted by the respondents. I agree with the respondents that there is significance to the word “within” being used in section 34(1) of the Code. However, this word cannot be reviewed in isolation as it is followed by the words “after the incident”, which, according to section 89(5) of the Legislation Act, (“a period of time described as beginning…after a specified day excludes that day” (emphasis added)), means that the Application was due on February 19, 2011. The Tribunal had held that an application is untimely when it is filed beyond the anniversary date of the incident alleged to have taken place. See Gagne, supra, at para. 9 and Moffat, supra, at para. 13.

29However, the Application was not filed on Saturday, February 19, 2011. The applicant submits that the Application was due on Tuesday, February 22, 2011, because Saturday, February 19, Sunday, February 20, and Monday, February 21 were all holidays as defined by the Tribunal’s Rules.

30I agree that the Saturday, Sunday and Monday were all “holidays” as defined in Rule 1.4 of the Tribunal’s Rules as the Tribunal’s offices were closed on the Saturday, the Sunday, and on the Monday for Family Day. However, it is not clear that the Tribunal’s Rules can be used to calculate the time limitations specified in the Code. See Watson v. Transgear Manufacturing, a Division of Limamar Holdings, 2011 HRTO 2162, at para. 7.

31Instead, the Legislation Act, 2006, which is applicable to the calculation of time specified in a statute like the Code, makes it clear that the Application became due on Tuesday, February 22, 2011. The Tribunal’s offices are closed on a Saturday, the date the Application was due. However, pursuant to section 89(2) of the Legislation Act, 2006, which states that a time limit for filing a document when the place is not open during its regular hours of business is extended to include the next day the place is open for business, means that the Application became due on Tuesday, February 22, 2011, the next day the Tribunal was open for business.

32The receipt that the applicant filed with the Tribunal shows that she paid $7.84 on February 18, 2011, to Canada Post for Xpresspost and an additional $1.50 to obtain a signature. This is well above the standard price for a regular stamp. The applicant submits that she expected the Application to be delivered to the Tribunal by “the deadline”. The Canada Post tracking information shows that the Xpresspost item was expected to be delivered on February 21, 2011, but was successfully delivered and signed for on February 22, 2011, at 13:23. However, the Tribunal date stamped the Application as being received on February 23, 2011. Based upon the material that the applicant filed, I accept that her Application was delivered to the Tribunal on February 22, 2011, and accordingly was filed in a timely manner.

33However, even if I accept that it was received by the Tribunal on February 23, 2011 or filed beyond the one-year limitation period as submitted by the respondents, I accept that any delay in filing the Application was incurred in good faith given that the applicant sent her Application, by Xpresspost, prior to the deadline. This fact situation is a rather novel one before the Tribunal as there does not appear to be any case law in which an applicant mailed (or couriered) his or her application before the deadline but the Tribunal received the application after the deadline. The parties in this proceeding did not provide the Tribunal with any case law directly on point.

34The closest decision on point is Gagne v. Maximum Mining, 2010 HRTO 1064, in which the applicant filed a Request for Reconsideration of Gagne v. Maximum Mining, 2010 HRTO 689 (“the Request”). As part of the Request, the applicant submitted that he sent his Application by “Canada Post Express registered mail” two days before the limitation period, yet it arrived at the Tribunal six days later and after the limitation period. In an Interim Decision, 2010 HRTO 1064, the Tribunal gave the applicant an opportunity to file, amongst other documentation, these Canada Post records. In a subsequent decision denying the Request, 2010 HRTO 1493, the Tribunal found that the applicant had not met the threshold for a reconsideration request, in part, because he could not provide a reasonable explanation as to why he did not disclose his Canada Post information prior to the initial conference call that resulted in his application being dismissed. Therefore, the issue about the application being sent before the one-year limitation period, but received by the Tribunal after it, was not determined.

35With respect to the respondents’ submissions that they would be substantially prejudiced, the Tribunal has held that in assessing substantial prejudice, some factors that it 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. See, for example, AlSaigh v. University of Ottawa, 2012 HRTO 2, at para. 9. In this case, I note that the respondents have not particularized any “substantial prejudice” from which they would suffer if the Application continues. More importantly, I note that the respondents filed a comprehensive Response in which they make references to conversations held with the applicant or her family, text messages sent at specific times on specific dates with the applicant or her family, and specific dates on which the applicant was absent. Accordingly, I do not find that the respondents are substantially prejudiced within the meaning of section 34(2) if the Application was filed one day late.

36With respect to whether Xpresspost constitutes mail or courier, I find that I do not need to make this determination because the Tribunal actually received the Application. Rule 1.22, the “deeming” provision, if it applies at all in circumstances pertaining to the filing of an Application, does not apply when a party, or the Tribunal, has actually received the documentation in question. See Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 1519, at para. 11.

37Accordingly, I find that the Application was filed within the one-year limitation period under section 34(1). Alternatively, if it was filed outside the requisite time period, the applicant has established a good faith explanation for the delay, the respondents have not established that they would be substantially prejudiced and the Application is permitted to proceed.

Order

38The respondents’ request to dismiss the Application is denied.

39As the parties have indicated a willingness to attend the Tribunal’s mediation services, the Tribunal will schedule the file for mediation. Notice of the mediation will be issued under separate cover.

40I am not seized with this matter.