HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamed Mohamud
Applicant
-and-
Morrison Lamothe Inc.
Respondent
DECISION
Adjudicator: Naomi Overend
Indexed as: Mohamud v. Morrison Lamothe Inc.
APPEARANCES
Mohamed Mohamud, Applicant
Concetta Oliverio, Representative
Morrison Lamothe Inc., Respondent
Hadiya Roderique and Karen Sargeant, Counsel
Introduction
1The applicant filed this Application on December 5, 2011, alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On January 6, 2012, the Tribunal sent a Notice of Incomplete Application and Notice of Intent to Dismiss Application, as it appeared the Application was filed more than one year after the date of the last incident of alleged discrimination.
2The applicant filed submissions in response to the above Notice, indicating that the applicant did not receive a copy of the letter terminating his employment until March 2011 and the Application was, therefore, timely. The Tribunal directed a one half day hearing be scheduled to hear evidence and determine the issue of delay.
3This hearing was initially held on May 9, 2012, but another date had to be scheduled as the applicant’s request for a translator was not received by the Tribunal. The applicant’s uncle, who was able to informally translate for the applicant, was present on May 9, 2012 and the applicant was content to proceed with the evidence of Janice Haight, one of the respondent’s witnesses, who was in her eighth month of a high-risk pregnancy.
4The hearing was re-convened on July 3, 2012, at which time the Swahili interpreter was present. The applicant testified on that date. The respondent had a second witness, Amalia Miceli, available to given oral testimony that day, but the applicant was content with allowing her will-say statement to be introduced as her testimony, and waived the right to cross-examine her.
5At the time giving rise to the events in question, Ms. Haight was the Human Resources Manager and Ms. Miceli a Human Resources Specialist with the respondent. They testified about a meeting that took place with the applicant on November 5, 2009, and their interactions with the applicant in the months that followed.
6Following the applicant’s final submissions, I issued an oral ruling dismissing the Application on the basis of delay. I indicated to the parties that I would issue written reasons.
FINDINGS OF FACT
7The applicant was a former employee of the respondent. He worked as sanitation worker there until he sustained a workplace injury in 2004. He returned to his job shortly thereafter, but by late 2005, was unable to work. The respondent does not dispute that the applicant sustained a debilitating injury to his back which prevented him from working at its premises. Indeed, it takes the position that there were no suitable positions in which it could accommodate the applicant.
8In his Application, the applicant takes the position that the respondent “was asked to provide suitable modified employment” taking into account his limitations, which it disregarded. However, at the preliminary hearing, he testified that there were (and continue to be) no suitable jobs he would be capable of doing. This is also the position he takes with the Workplace Safety and Insurance Board (“WSIB”).
9Ms. Haight testified that the applicant was asked to provide an update of his functional abilities status in August 2009. He complied with this request by taking the requisite form to his doctor to fill out. In September 2009 Ms. Haight asked the applicant to obtain from his doctor “the estimated duration of limitations.” Again, the applicant complied with the request. The response from his doctor was that the duration “could be long term and quite possibly permanent.”
10At that point, the respondent made a decision to terminate the applicant’s employment. Ms. Haight and Ms. Miceli testified that the applicant was invited to a meeting on November 5, 2009 at which time he was told that his employment with the respondent was terminated. They explained to him verbally that his benefits would continue to February 1, 2010. This was also set out in a letter dated October 27, 2009, which they say was handed to the applicant.
11The documents tendered by the respondent are consistent with their testimony with respect to the sequence of events leading up to and including the applicant’s termination.
12Both respondent witnesses said that the applicant appeared to understand them, and answered in the affirmative when he was asked directly whether he understood the details of his termination. Ms. Miceli stated that shortly after the applicant’s benefits were cut off, he called her on the telephone, and said “he was looking for some money.” She stated she directed him to his union. He called her about the same issue two or three more times thereafter, with the last call taking place in early 2011.
13The applicant does not deny the sequence of meetings in the fall that led to the termination of his employment or the telephone calls to Ms. Miceli thereafter. Rather, he states he cannot remember what took place. Indeed, his memory around dates and events appears to be very poor. In response to many of the questions posed to him by his own representative (as well as on cross-examination), the applicant answered that he could not remember.
14Taking into account the credible manner in which the respondent’s witnesses recounted events, the supporting documents and the applicant’s inability to remember these events, I accept the respondent’s evidence that a meeting took place on November 5, 2009, at which time the applicant’s employment was terminated. Although his relationship with the respondent was formally ended on that day, I accept Ms. Miceli’s evidence that the applicant would periodically phone her to inquire about whether he was owed any money.
15That, however, does not fully decide the matter of when the applicant was first aware of the termination of his employment since there is also an issue of how much the applicant understood. The applicant testified, through an interpreter, that he had grown up in Somalia, speaking Swahili, and did not immigrate to Canada until he was in his early 20’s. He was not formally educated in Somalia and is functionally illiterate in both English and Swahili.
16On cross-examination, the applicant acknowledged that he was given work instructions in English, and that that is the language in which he communicated with his co-workers. He acknowledged phoning Ms. Miceli from time to time to make inquiries. He also said that he phoned his union representative to obtain assistance afterwards, but was disappointed by the representative’s lack of response.
17Given his willingness to communicate by telephone in English, I am prepared to accept that the applicant had a basic level of fluency in spoken English at the time, and likely understood on November 5, 2009 that his job was being terminated.
18His inability to read English would be more troubling but for the fact that the applicant testified he showed his uncle the letters he received from the respondent and his uncle both read and translated them for him. Thus, when the respondent sent the letters in August and September 2009 asking for a functional abilities status update, the applicant was able to appropriately respond by getting this information from his doctor.
19Moreover, as pointed out by counsel for the respondent in cross-examination, even prior to the termination of his employment, the applicant was represented by Ms. Oliverio (his representative in both this matter and the ongoing appeals at the WSIB) with respect to his dispute with the WSIB. In October 2009, the applicant received a decision from the Workplace Safety and Insurance Appeals Tribunal (allowing his appeal), in which Ms. Oliverio is shown as his representative.
analysis
20Section 34 of the Code 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.
21As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “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.”
22The question of what constitutes the last “incident” of discrimination appeared to be in contention. Initially at least, the applicant took the position that the last incident occurred on March 31, 2011, when his representative received confirmation that his employment had been terminated effective October 2009. However, in light of my findings of fact that the applicant was advised in person and by letter on November 5, 2009 of this event, this position is untenable.
23I would note, parenthetically, that it is not clear that the termination of the applicant’s employment was, in fact, discriminatory, since the applicant appears to assert that he was and remains unable to do the essential duties of any job with the respondent. However, it not necessary to decide this.
24The Application was not filed until December 2011, which is more than two years after the last incident alleged to be discriminatory. Even accepting that the applicant’s representative attempted to file with the Tribunal in June 2011, the Application would still be well outside the one-year time period set out in the Code. When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.
25I cannot accept that the language barriers represent a good faith explanation. The applicant demonstrated during this time period that he sought assistance when he received something that may not have been clear to him. In the months leading up to the termination of his employment, he acted on two letters sent to him by the respondent in an appropriate fashion by first having them read and translated by his uncle.
26Moreover, prior to this period, he had retained a paralegal to assist him with his WSIB issues. Indeed, this was the same person who represented him before this Tribunal. Had he been confused by the respondent’s actions, or determined at the time that he may have been discriminated against, he could have consulted with this individual. This, apparently, did not happen.
27It would seem that the applicant was not initially concerned about the end of his employment relationship because he was in receipt of WSIB loss of earning benefits. The concern about the end of his employment with the respondent seems to have stemmed from the fact that he was advised that his WSIB benefits would be severely curtailed because he had completed his Labour Market Re-entry program. This does not amount to a good faith explanation for the delay in filing with this Tribunal.
28Given the absence of a good faith explanation, the Tribunal is without the jurisdiction to deal with this Application and it is, therefore, not necessary to address the issue of prejudice.
29Accordingly the Application is dismissed.
Dated at Toronto, this 18th day of July, 2012.
Signed by
Naomi Overend
Vice-chair