Gerard Dion v. Mohawk College, 2012 HRTO 1681

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard Dion

Applicant

-and-

Mohawk College

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: September 6, 2012

Citation: 2012 HRTO 1681

Indexed as: Dion v. Mohawk College

APPEARANCES

Gerard Dion, Applicant

Self-represented

Mohawk College, Respondent

Brenda Bowlby, Counsel

1This is an Application filed on June 15, 2011, 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 because of disability, association with a person identified by a prohibited ground of discrimination and reprisal.

2In a Case Assessment Direction dated November 28, 2011, the Tribunal ordered a summary hearing to determine whether the Application should be dismissed because it has no reasonable prospect of success or because the allegations are untimely pursuant to section 34(1) of the Code. The summary hearing took place on May 7, 2012, by teleconference.

The Application

3The Application sets out several allegations of inappropriate treatment of the applicant by the respondent’s personnel dating back to 2004. The allegations include:

• The cancellation, in 2004, of a course taught and highly valued by the applicant;

• Taking “umbrage” because the applicant assisted other faculty members in their employment disputes with the respondent; and,

• That the respondent’s president expressed a desire to have the applicant fired.

4The applicant, who indicated that he suffers from depression, also alleged that the respondent ceased accommodating his disability in the fall of 2008. The applicant’s disability prevented him from undertaking the full work load of a full-time professor. For several years, the applicant worked less than full-time hours, but the respondent permitted him to use his accumulated sick day credits to top up his income to the full-time equivalent. The respondent eventually determined that it was no longer prepared to maintain this arrangement. The applicant could not afford to work on a reduced salary and therefore resumed a full work load in the fall semester of 2009, contrary to his doctor’s advice. The return to a full-time schedule was detrimental to the applicant’s health and he was forced to retire earlier than he planned, on June 30, 2010.

5The respondent assigned the applicant to work at the Brantford campus in the fall of 2009. This assignment required him to leave very early in the morning to arrive on time. In his Reply, the applicant clarified that he did not object to working at the Brantford campus, but the respondent chose to schedule his classes in a manner that was inconsistent with his disability-related restrictions that had been communicated to the respondent. The applicant’s teaching schedule exacerbated his condition.

6In the Application and the Reply, the applicant states that he was unfairly criticized for giving one of his classes a quiz that had been typed on a typewriter, as opposed to being keyed on a computer, when his computer broke down, and for drinking some non-alcoholic beer while teaching a class at the Brantford campus.

Submissions

7The applicant submitted that the events leading to his allegedly forced retirement began when the respondent’s president at the time labelled the applicant as being “sick in the head” and expressed her desire to remove the applicant from the faculty. The result was a series of disrespectful and discriminatory actions taken by several senior faculty members ranging from trivial complaints against him to failure to accommodate his disability.

8The applicant submitted that his allegations did amount to a prima facie case of discrimination. He submitted that his supervisor was aware that his disability made morning work more difficult for him, but nonetheless assigned him the earliest possible class time when he began working at the Brantford campus. His supervisor similarly ignored his request that his classes at Brantford be scheduled in a block of time, which would assist the applicant in coping with his workload.

9The respondent ceased the accommodation of allowing him to access his sick leave credits to top up his income while working part-time hours, as his disability related restrictions required. The applicant submitted that continuing this accommodation was possible, but the respondent refused and offered no other accommodation.

10The applicant submitted that he was subjected to trivial and vexatious complaints as part of the campaign to achieve the president’s desire to remove him from the faculty. These complaints included criticizing him for giving a test that was typed, not keyed, and for drinking some non-alcoholic beer during a class.

11The applicant submitted that the respondent’s actions constitute reprisals because they were motivated in part to punish him for assisting other faculty members who sought disability-related accommodation in the fall of 2007 and 2008.

12The applicant submitted that the respondent’s actions amount to a series of discriminatory actions, the last of which was his retirement on June 30, 2010. The applicant submitted that this final incident was within one year of the date on which the Applicant was filed, June 15, 2011. The applicant stated that he had spoken to someone at the Tribunal who assured him that he had a full year after his retirement date in which to file his Application and submitted that this conversation was “documented”. The applicant also argued that he was exhausted and unable to “fight back” at the time of his retirement and only learned of the treatment of colleagues who also sought accommodation after he retired.

13The respondent submitted that the applicant’s submissions during the summary hearing departed significantly from the factual allegations set out in the Application and Reply. The respondent noted that the Application indicated that the applicant’s supervisor became antagonistic towards him because he declined to accept a coordinator position and because he assisted co-workers with labour relations issues. During the hearing, however, the applicant attributed this antagonism to assisting colleagues with accommodation issues and the alleged intention of the president to have the applicant leave the faculty, apparently because of her assessment that he was mentally ill. The respondent submitted that if the applicant is held to the allegations set out in the Application, then there is no connection between the cancellation of the course taught by the applicant or his assistance of colleagues to a prohibited ground of discrimination.

14The respondent submitted that neither the criticism the applicant received for preparing a quiz that was not keyed nor the concern raised regarding him drinking non-alcoholic beer during a class is connected to a Code ground. In both cases, the applicant’s supervisors expressed their expectations to him and he was not subject to any discipline, which is not harassment or discrimination.

15The respondent submitted that allowing the applicant to use his sick credits to top up his income while working less than full time was a temporary accommodation utilized in the expectation that the applicant would eventually recover and return to full time work. The respondent discontinued this accommodation when it concluded that the applicant’s restrictions were permanent. The respondent submitted that the duty to accommodate does not require an employer to pay an employee a full-time salary if he can only work part-time hours and relied upon the decision of the Ontario Court of Appeal in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital and Sault Ste. Marie General Hospital, 1999 CanLII 3687 (ONCA).

16The respondent submitted that it had no information from the applicant or his physician indicating that his assignment to the Brantford campus or his course schedule conflicted with his disability-related restrictions. The respondent scheduled the applicant’s courses in the morning and later in the day with a view to helping him conserve energy. The respondent submitted that it was only at the summary hearing that the applicant indicated that morning classes were problematic for him and that scheduling his classes in blocks would assist him.

17The respondent submitted that the applicant pointed to no evidence that he ever complained that his human rights were violated. Consequently, the respondent submitted that there was no basis for a finding that the respondent committed a reprisal against him for attempting to enforce his human rights.

18The respondent noted that the Application was filed on June 15, 2011, and the applicant claimed that the last incident was his retirement on June 30, 2010. The respondent also noted, however, that the applicant actually decided to retire in May 2010 and accepted a payment of $49,000.00. The respondent pointed to a Voluntary Exit Option Form that the applicant executed on May 21, 2010, which was more than a year before the Application was filed. The respondent submitted that the applicant’s retirement on June 30, 2010, was the effect of his decision to retire, taken in May 2010. The respondent submitted that pursuant to the Tribunal’s jurisprudence the time limit set out in section 34(1) of the Code runs from the date of an allegedly discriminatory act and not from the date of the effect of such an incident and relied upon the Tribunal’s decision in Degen v. Toronto (City), 2011 HRTO 319. The respondent also submitted that the last incident was actually the respondent’s decision to assign the applicant to the Brantford campus and that the courses he taught ended prior to May 2010. Accordingly, this incident occurred at least 14 months before the Application was filed.

19The respondent submitted that the applicant provided no explanation for the delay in filing the Application. The respondent expressed scepticism regarding the applicant’s explanation that Tribunal personnel advised him that his Application would be timely if he filed it within one year of his retirement date. The respondent submitted that Tribunal staff do not give this kind of advice and restrict themselves to confirming the language of the Code. In any event, the respondent noted that the applicant provided no explanation for waiting to file the Application until the end of June 2011, after allegedly discussing the matter with someone at the Tribunal in January 2011. Consequently, the respondent submitted that the applicant provided no good faith reason for the delay.

Analysis and Decision

20Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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.

21The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25:

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, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

22The applicant argued that his retirement on June 30, 2010, was last in a series of discriminatory acts the respondent committed against him, which is within one year of the date on which the Application was filed, June 15, 2011. The applicant also argued that any delay was incurred in good faith because he relied on advice given by Tribunal personnel, was exhausted and unable to “fight back” at the time of his retirement and only learned of the treatment of colleagues who also sought accommodation after he retired.

23In Degen, supra, the applicant also argued that his retirement was an incident of alleged discrimination that occurred within one year of the filing date of the Application. The Tribunal rejected this argument, finding the applicant’s retirement was the effect of his earlier decision to retire, which occurred outside of the one-year time limit, and noted that the Tribunal has rejected the idea that continuing effects of an allegedly discriminatory act constitute an incident for the purposes of section 34. See: Mafinezam v. University of Toronto, 2010 HRTO 1495. The Tribunal found that there was no allegation of any discriminatory act on the retirement date.

24In my view, the Tribunal’s reasoning in Degen applies squarely to this case. The applicant retired on June 30, 2010, but this was the date that his decision to retire came into effect. The applicant took that decision in May 2010, more than one year before the Application was filed. The applicant does not allege the respondent committed any discriminatory act on June 30, 2010 and the last incident attributed to the respondent was its criticism of the applicant for drinking non-alcoholic beer during a class. That incident, assuming it could be said to be discriminatory, occurred in the 2009/2010 academic year before the applicant retired and is also outside the one-year period in section 34. Consequently, I find that there are no alleged incidents described in the Application that come within the one-year time limit set out in section 34.

25The applicant did not provide an explanation that establishes the delay in filing the Application was incurred in good faith. The applicant states that he relied on advice from someone at the Tribunal that he could file his Application within one year of his retirement date. As noted on the Tribunal’s website, Tribunal personnel do not give legal advice to parties. Accordingly, I am not prepared to accept the applicant’s assertion that he received such advice from the Tribunal without particulars. During the hearing, I directed the applicant to provide particulars of this alleged discussion to the Tribunal and respondent following the hearing, including any record he kept of it. The applicant has provided no particulars and the Tribunal has no record of any such discussion. The applicant did not explain why information regarding the accommodation-related treatment of colleagues caused the delay or why he could not gather this information in a timely manner. The applicant stated that he was exhausted and unable to confront the respondent at the time of his retirement. The applicant, however, provided no explanation for why he may have been unable to file his Application for over a year. As noted in Degen, supra, the Tribunal requires medical evidence establishing that an applicant’s disability was so debilitating that it prevented the applicant from pursuing his or her rights under the Code. The applicant provided no such evidence in this case.

Order

26Having found the Application to be untimely and that the applicant provided no good faith explanation for the delay, it is unnecessary to determine whether it has a reasonable prospect of success and the Application is dismissed.