Jordan v. Ontario Nurses Association, 2012 HRTO 1417

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean Jordan Applicant

-and-

Ontario Nurses Association and Villa Colombo Respondents

DECISION

Adjudicator: Maureen Doyle Date: July 19, 2012 Citation: 2012 HRTO 1417 Indexed as: Jordan v. Ontario Nurses Association

WRITTEN SUBMISSIONS

Jean Jordan, Applicant Self-represented

Introduction

1This is an Application filed on April 31, 2012, 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, contracts and membership in a vocational association because of race, colour, place of origin, disability, age and reprisal. The applicant names as respondents the Ontario Nurses Association (the "union") and Villa Colombo (the "employer").

2In her Application, the applicant indicates that the date of the last event relating to the allegations in her Application were October and December, 2000. Her narrative of events is quite lengthy and somewhat disjointed, but it appears that generally, the nature of her allegations relates to her complaints that she was unfairly treated as a nurse at Villa Colombo, her employment was terminated in 1999, and she has not been satisfied with the representation of her former union, the respondent. She also makes reference to a scheduled grievance arbitration process and a 1999 settlement. Additionally, she complains about the difficulty she had in securing employment elsewhere subsequently, though it is not entirely clear which allegations relate to October and December 2000. The applicant has enclosed documentation including copies of various documents such as cheques, correspondence and documentation relating to previous proceedings at the Ontario Labour Relations Board, Small Claims court and a copy of a letter of complaint to the Law Society of Upper Canada.

3A Notice of Incomplete Application and Notice of Intent to Dismiss ("NOID") was sent to the applicant by the Tribunal on May 29, 2012, indicating that the Application was incomplete and also indicating that it appeared that the Application was outside the Tribunal's jurisdiction because it was filed more than one year after the last incident of alleged discrimination and that it did not appear that she had cited facts which would establish that the delay was incurred in "good faith" within the meaning of the Tribunal's case law. In addition to directing her to complete certain portions of her Application, the NOID directed her to provide written submissions to the jurisdictional issue of timeliness no later than June 18, 2012.

4By way of response to the NOID, the applicant provided further lengthy, somewhat disjointed submissions, again including copies of documentation relating to such matters as her personal financial matters, copies of cheques to paralegals and documents relating to proceedings at the Ontario Labour Relations Board. In her submissions, she indicates that she has suffered problems with her health and that the respondents' actions left her feeling as if she was "hit by a 4 X 4 plank". She indicates that she is "no longer 'fogged out' after some healing". She requests that the Tribunal allow her a "15 year limitation period".

5A review of the Application, submissions and documentation provided indicates that the applicant has filed three complaints (in 2000, in 2001 and in 2009) with the Ontario Labour Relations Board against the respondent union and others regarding the "Duty of Fair Representation" pursuant to s. 74 of the Ontario Labour Relations Act and made a complaint in or around 2000 to the College of Nurses. She has also consulted with more than one paralegal and with at least two lawyers regarding her allegations, and she indicates that she has unsuccessfully attempted to secure legal assistance through "Lawyer Referral" services from "about 17 lawyers". In February 2001, she wrote a letter of complaint to the Law Society of Upper Canada regarding one lawyer. The documentation relating to her complaints to the Ontario Labour Relations Board indicates that the complaint she made in 2000 was withdrawn, the complaint she made in 2001 was dismissed and her subsequent complaint in 2009 was dismissed on the basis that the matter had already been adjudicated. The documentation provided by the applicant also indicates that she consulted with a paralegal at least as early as 2002 and that she believed he was filing a complaint for her regarding her "human rights". She became dissatisfied with this paralegal's services and in or about 2006 it appears that she may have commenced an action in Small Claims court to recoup the fees she had paid to him. In 2007, she retained a lawyer to pursue a claim of "unjust dismissal" from Villa Colombo, and he wrote a "letter of demand" to that employer on her behalf.

6It is not clear from the Application whether the applicant intended to name individuals in addition to the respondent union and employer. Despite the Tribunal's May 29, 2012 Notice of Incomplete Application and its attempt to have the applicant clarify the intended respondents, it remains unclear whether she names only the respondent union and employer or whether she names certain individuals as respondents. In any event, I have carefully reviewed all of the allegations in her Application and her submissions in addition to the documentation she has provided and I am satisfied that all of the allegations, whether against the respondent union and/or respondent employer only, or whether against named individuals, are all untimely and are all dismissed on that basis.

DELAY

7Section 34 states, in part:

(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.

8As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, "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." When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

9Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

10The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner.

11The applicant has indicated that her health concerns, which she alleges were brought about due to the discriminatory treatment, did not permit her to file her Application within the statutory time limit, and, as noted above, refers to her health and having been "fogged out". In considering the evidence before me I do not find that the evidence establishes on a balance of probabilities that these issues prevented her from filing an Application within the one-year time period and, therefore, I find that the delay was not incurred in good faith.

12The applicant took numerous steps following October and December 2000 to assert her rights, including her rights under the Code. She filed three complaints at the Ontario Labour Relations Board, she wrote a letter of complaint to the Law Society of Upper Canada, she consulted and retained at least one paralegal to pursue her "human rights", she appears to have taken steps to commence a claim in Small Claims court seeking reimbursement of fees she paid to the paralegal, she consulted with at least two lawyers and a letter of demand was sent by at least one of these lawyers in connection with an allegation of unjust dismissal from the employer. I do not find that her level of activity in asserting her rights is consistent with an inability to file an Application with the Tribunal within the statutory time period.

13The April 31, 2012 Application is filed outside the one-year statutory time limit and I am not satisfied that the applicant was unable, for valid reasons, to pursue the allegations under the Code against the respondents and that the delay was incurred in good faith.

14I find that the circumstances in subsection 34(2) do not apply to the facts before me. This Application cannot proceed under subsection 34(1) of the Code and is therefore dismissed.