HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Olaski

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 5, 2012

Citation: 2012 HRTO 1678

Indexed as: Olaski v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Angela Olaski, Applicant ) Self-represented

Her Majesty the Queen in Right ) of Ontario as represented by the ) Marnie Corbold, Counsel Minister of Community Safety and ) Correctional Services, Respondent ) )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Application should be dismissed because it was not filed with the Tribunal within the one-year statutory deadline.

BACKGROUND

2The applicant was employed as a correctional officer with the respondent. Her last day of work at a correctional centre was on November 18, 2008. On April 12, 2011, the respondent sent the applicant a letter which informed her that her fixed-term employment contract had expired on March 31, 2009, and that the respondent had decided not to offer her a new contract.

3On April 11, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to employment because of her disability, and subjected her to reprisal. Specifically, she alleged that:

1. In 2008 and 2009, the respondent failed to accommodate her disability-related needs in the workplace and with respect to a return to work.

2. On April 12, 2011, the respondent sent her a letter which terminated her employment because she was on a disability-related leave and as a reprisal for pursuing a Workplace Safety and Insurance Board (“WSIB”) claim.

4On July 12, 2012, the respondents filed a Response, which denied the allegations of discrimination and reprisal, and requested that the Application be dismissed because it is untimely. On August 20, 2012, the applicant filed a Reply, which denied that her Application was untimely.

ANALYSIS

5The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

6The first issue to consider is whether the alleged incidents of discrimination and reprisal in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360, at para. 9. In the case at hand, there was a break of more than one year between the respondent’s alleged failure to accommodate the applicant’s disability-related needs in 2008-2009, and the respondent’s April 2011 letter refusing to renew the applicant’s contract. As such, I find that the last alleged incident in April 2011 is not part of a series of incidents, and that the 2008-2009 alleged incidents are beyond the one-year statutory deadline.

7The second issue to consider is whether the applicant’s delay in filing her Application with respect to the 2008-2009 alleged incidents was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….

8In her Reply, the applicant explained that she was unable to file her Application with respect to the 2008-2009 allegations in a timely manner because of psychological difficulties. In support of her explanation, the applicant provided a copy of a referral to a psychiatrist and a list of the medications that she was prescribed.

9Although the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that a disability was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317, at para. 9. None of the applicant’s supporting documents indicate that her psychological difficulties were so debilitating that they prevented her from pursuing her legal rights under the Code. Furthermore, the applicant’s pleadings indicate that she pursued other legal proceedings (her WSIB claim and a complaint to the Law Society of Upper Canada) and held part-time employment during the same time period she is alleging that her psychological difficulties rendered her incapable of filing her Application. In these circumstances, I am not satisfied that the applicant’s more than one-year delay in filing her Application with respect to the 2008-2009 alleged incidents was incurred in good faith.

10In view of my finding that the applicant’s delay in filing her Application with the Tribunal with respect to the 2008-2009 alleged incidents was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. The allegations in the Application relating to incidents in 2008-2009 are therefore dismissed.

11In the result, the only allegation that remains outstanding in the Application is the applicant’s allegation that on April 12, 2011, the respondent sent her a letter which terminated her employment because she was on a disability-related leave and as a reprisal for pursuing a WSIB claim.

12If the parties are interested in mediation, they shall contact the Tribunal’s Registrar within two weeks of the date of this Interim Decision. If the parties do not contact the Registrar, or indicate that they are not interested in mediation, the Registrar shall schedule a one-day hearing of the merits of the Application.

ORDER

13The Application therefore makes the following orders and directions:

1. The allegations in the Application relating to incidents in 2008-2009 are dismissed.

2. The only allegation that remains outstanding in the Application is the applicant’s allegation that on April 12, 2011, the respondent sent her a letter which terminated her employment because she was on a disability-related leave and as a reprisal for pursuing a WSIB claim.

3. If the parties are interested in mediation, they shall contact the Tribunal’s Registrar within two weeks of the date of this Interim Decision.

14I am not seized of this matter.