HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sulochana Shantakumar

Applicant

-and-

North York General Hospital

Respondent

DECISION

Adjudicator: Sheri Price

Date: July 25, 2012

Citation: 2012 HRTO 1454

Indexed as: Shantakumar v. North York General Hospital

INTRODUCTION

[1] In this Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (“the Code”), the applicant alleges that the respondent employer discriminated against her on the basis of race, colour, place of origin, ethnic origin, disability, and age with respect to employment. Specifically, in the Application she filed with the Tribunal, the applicant alleges that the respondent employer discriminated against her by requiring her to return to work from a disability leave before she was physically able to do so; by mistreating her in the workplace upon her return to work in the fall of 2010; and by terminating her employment on December 3, 2010.

[2] In accordance with the narrative accompanying her Application, the applicant indicated in her Application that the date of the last event upon which her Application is based occurred in December 2010.

NOTICE OF INTENT TO DISMISS ON BASIS OF DELAY

[3] Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or within one year of the last incident, if there was a series of incidents) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.

(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.

[4] The Application in this case was filed with the Tribunal on January 16, 2012, which was more than a year after the applicant’s employment was terminated by the respondent on December 3, 2010.

[5] Accordingly, on April 26, 2012, the Tribunal sent the applicant a Notice of Intent to Dismiss the Application on the basis of delay, because it appeared that the Application had been filed more than a year after the date of the last event upon which the Application was based and the applicant had not cited any facts that might establish that the delay in filing the Application had been incurred in good faith. The Tribunal directed the applicant to make submissions addressing the issues identified in the Notice of Intent to Dismiss.

[6] On May 16, 2012, the applicant filed written submissions in response to the Notice of Intent to Dismiss. In those submissions, the applicant asserts that the last incident of discrimination to which her Application relates occurred on March 11, 2011. On that date, the applicant entered into Minutes of Settlement with the respondent and her trade union settling two grievances, one in respect of a three-day suspension she received in November 2010; and another in respect of the December 3, 2010 termination of her employment. In her May 2012 letter, the applicant alleges that the respondent discriminated against her on the basis of physical, mental and emotional disabilities by denying her the opportunity to take her time to review the settlement before agreeing to it. The applicant alleges that, because of her disabilities, her judgment was impaired and she was unable to concentrate and think clearly. As a result, she submits that she did not appreciate that, by signing the settlement, she would be deemed to have resigned from her employment with the respondent. Since the January 16, 2012 Application was filed within one year of March 11, 2011, the applicant submits that her Application is timely.

ANALYSIS AND DECISION

Whether the Application was filed within one year of the date of the last incident in the “series of incidents” to which the Application relates

[7] The first issue to be determined in this case is whether the Application was filed within one year of the date of the last incident to which the Application relates.

[8] Having reviewed the materials before the Tribunal, I cannot agree with the applicant’s assertion that the date of the last incident to which the Application relates was March 11, 2011, such that the Application was timely. On the contrary, I find that the date of the last incident to which the Application relates was December 3, 2010, the date on which the applicant’s employment was terminated by the respondent.

[9] The Application that the applicant filed with the Tribunal in January 2012 does not contain any allegations that the respondent discriminated against the applicant with respect to the settlement of her termination grievance, whether on March 11, 2011 or otherwise. Nor does the Application refer to any incidents that allegedly occurred after the termination of the applicant’s employment in December 2010.

[10] The first time the applicant made any mention of the March 11, 2011 settlement was when she responded to the Tribunal’s January 24, 2012 request for further information regarding what the applicant had indicated was an ongoing grievance with “ONA”, including whether the applicant wished the Tribunal to defer her Application pending the resolution of such grievance.

[11] In her January 31, 2012 response, the applicant clarified that, contrary to the statement in her Application, the grievance was not ongoing. She alleged that her trade union, the Ontario Nurses’ Association, “forced” her to accept a March 2011 settlement of her grievance because the union’s lawyer “did not care” for the applicant’s claims that the respondent employer had harassed the applicant and discriminated against her on the basis of her physical disability. The applicant also asserted that the March 2011 settlement had not been a just resolution of her complaints about the respondent’s treatment of her. She did not, however, make any allegation that the respondent had discriminated against her during the course of the settlement negotiations in March 2011.

[12] In the circumstances, I am not persuaded that March 11, 2011 may be reasonably regarded as the date of the last incident “to which the Application relates” within the meaning of s.34(1) of the Code. On the contrary, a fair reading of the Application that the applicant filed with the Tribunal leads me to conclude that the date of the last incident to which the Application relates occurred on December 3, 2010, the date on which the applicant’s employment was terminated by the respondent employer. This is the last incident mentioned in the applicant’s lengthy narrative setting out in detail the allegations in support of the applicant’s claim that the respondent infringed her rights under the Code. The fact that the applicant herself indicated in the Application that she filed with the Tribunal that the “date of the last event” to which her Application relates was “December 2010” supports my finding that the date of the last incident was December 3, 2010. In my view, the applicant is attempting to characterize March 11, 2011 as the date of the last incident to which her Application relates in order to cure the delay in filing her Application. The applicant’s position in this regard, however, is not sustainable based on the materials before the Tribunal.

[13] I might add that, even if I had been persuaded that March 11, 2011 ought to be regarded as the date of an incident to which the Application relates, I would not have found that March 11, 2011 was the date of the last incident in the “series of incidents” to which the Application relates.

[15] In my view, the allegations in the January 2012 Application that the applicant filed with the Tribunal are not sufficiently similar to the alleged events of March 11, 2011 for the incidents in the January 2012 Application and the incident of March 11, 2011 to be regarded as one series of incidents. The allegations contained in the January 2012 Application relate to the manner in which the respondent treated the applicant at work and as an employee of the hospital. In particular, in her January 2012 Application, the applicant alleges that the respondent pressured her to return to work before she was physically ready to do so and without giving the applicant the orientation and coaching that she needed to resume her nursing duties. The applicant also alleges that, upon her return to work, the respondent assigned her duties that were too physically demanding for her, because of her disability. In my view, these allegations are very different from the allegation that the respondent discriminated against the applicant by failing to give her sufficient time to understand what she was agreeing to when she settled two grievances with the respondent at an arbitration hearing in March 2011 – time the applicant allegedly needed because of mental disability. Consequently, I see the incidents referred to in the January 2012 Application and the incident of March 11, 2011 as separate and discrete, and not part of a “series of incidents”.

[16] In sum, I find that the date of the last incident to which the Application relates occurred on December 3, 2010. Since the January 16, 2012 Application was filed more than one year after that date, the Application must be dismissed as untimely, unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice will result to anyone affected by the delay.

Whether delay in filing the Application incurred in good faith

[17] The Tribunal has held that in order to establish that delay in filing an Application has been incurred in good faith, the applicant must provide a reasonable explanation as to why she did not file her Application within the one-year limitation period provided for in the Code. Miller v. Prudential Lifestyles Real Estate, [2009 HRTO 1241](https://www.minicounsel.ca/hrto/2009/1241); Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, [2008 HRTO 424](https://www.minicounsel.ca/hrto/2008/424).

[18] In this case, although given an express opportunity to do so, the applicant has not provided any explanation for the delay in filing her Application with the Tribunal. Accordingly, there is no basis upon which I might conclude that the delay in filing the Application was incurred in good faith.

[19] Where the Tribunal is not satisfied that the delay in filing the Application was incurred in good faith, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed. Esanu v. Georgetown Men’s Non-Contact Hockey League, [2009 HRTO 579](https://www.minicounsel.ca/hrto/2009/579).

[20] The Application was filed more than one year after the date of the last incident to which the Application relates and the applicant has not established that the delay in filing the Application was incurred in good faith. Pursuant to s.34(1) and (2) of the Code, the Application cannot proceed. The Application is dismissed accordingly.

Abuse of Process/Whether Another Proceeding Appropriately Dealt with the Substance of the Application

[21] Parenthetically, I would note that, if this Application had not been dismissed on the basis of delay, there would have been a serious question in this case as to whether the Application ought to be dismissed as an abuse of process and/or on the basis that another proceeding had appropriately dealt with the substance of the Application pursuant to s.45.1 of the Code. This is because, in the course of a labour arbitration hearing in respect of two grievances filed on or behalf of the applicant, the applicant entered into a settlement, in which she fully and finally released the respondent from any and all claims in relation to her employment, including claims under the Code. (See, for example, Perricone v. Fabco Plastics Wholesale, [2010 HRTO 1655](https://www.minicounsel.ca/hrto/2010/1655); Messiah v. Snap-on Tools of Canada, [2010 HRTO 1151](https://www.minicounsel.ca/hrto/2010/1151); Dunn v. Sault Ste. Marie (City), [2008 HRTO 149](https://www.minicounsel.ca/hrto/2008/149).)

[22] In light of my decision on the delay issue, however, it is not necessary to address those issues.

ORDER

[23] The Application is dismissed.

Dated at Toronto, this 25^th^ day of July, 2012.

“Signed by”

Sheri D. Price

Vice-chair

Shantakumar v. North York General Hospital, 2012 HRTO 1454

Case Summary