Theriault v. Toronto Police Services, 2012 HRTO 2163

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Theriault

Applicant

-and-

Toronto Police Services and William Blair

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: November 16, 2012

Citation: 2012 HRTO 2163

Indexed as: Theriault v. Toronto Police Services

WRITTEN SUBMISSIONS

Paul Theriault, Applicant

Self-represented

Toronto Police Services and William Blair, Respondents

Heather Crisp, Counsel

Introduction

1This is an Application filed February 1, 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 and reprisal or threat of reprisal.

2The Application, as originally drafted, consisted of 280 paragraphs and was over 75 pages in length. The response to question 8 of the Application form included much more than the applicant’s allegations of discrimination; it also encompassed argument about why the alleged actions of the employer were discriminatory, background information, the applicant’s submissions regarding the impact of the employer’s alleged discrimination and his motivation for filing the Application.

3Subsequent to the filing of the Application, the applicant filed several Requests for an Order During Proceedings (“RFOP”s) including a Request to amend his Application to add further allegations.

4The respondents have also filed an RFOP, including a Request to dismiss a portion of the Application on the grounds of delay.

5The applicant responded to the respondents’ RFOP and made submissions regarding the issue of delay.

6By way of a Case Assessment Direction (“CAD”), the Tribunal directed the applicant to file a concise statement clearly and briefly describing his allegations of discrimination contrary to the Code, and indicating whether each allegation was something referenced in his original Application or whether it was an allegation which he seeks to add by way of amendment to his Application. It indicated that the request to dismiss a portion of the Application for delay would not be addressed until the applicant filed his concise statement of allegations.

7The applicant has now filed his statement of allegations, in a document consisting of 95 paragraphs.

8This Interim Decision addresses the respondents’ Request for dismissal for delay of certain portions of the Application..

DELAY

9Section 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.

10Under section 34, the Tribunal has no jurisdiction to deal with an application 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. The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner.

11In their original Request for dismissal, the respondents requested dismissal of allegations contained in paragraphs 2 to 200. They indicated that those allegations related to incidents prior to the one-year period preceding the filing of this Application. Accordingly, they submitted that any allegations prior to February 1, 2010, should be dismissed for reason of delay.

DECISION

12For the reasons below, the allegations prior to the December 2009 allegation that the respondents failed to accommodate the applicant’s disability are dismissed as untimely.

Background

13The applicant’s narrative describes in detail his disability, Post Traumatic Stress Disorder (PTSD), and requests for accommodation made between May 2006 and September 2008. The narrative also describes incidents which occurred in “May-June 2008” which he believes resulted in his being suspected of domestic violence despite his spouse’s denials. The applicant also complains that disciplinary charges filed against him in October 2008 were laid without regard to the role his disability had on his conduct.

14The applicant also explains that in “January – May” 2009, with the support of a sergeant, he started a mental health committee and sought statistics about suicides by members of the police force. He alleges this activity resulted in him being banned from communicating with a particular employee and being required to have permission to attend at the second floor of certain premises. Permission to expand the mental health committee in July 2009 was denied by a Deputy Chief. He alleges he discovered that his gun had been taken away without his knowledge in October 2009 “due to my approved research on police suicides for my mental health committee”.

15The applicant was involved in a motor vehicle accident on November 12, 2009, and alleges that the accident occurred due to the stress he was experiencing.

16In December 2009, the applicant alleges he sought a transfer to another unit as a form of accommodation for his disability and this request was refused.

17The applicant states that the personal respondent supported the work of his committee and was aware in January 2010 that a reporter from the Globe and Mail was interviewing him and some others.

18In March 2010 the applicant alleges he found a note on his locker, stating “M.I. AT LARGE”. He indicates that “M.I.” means mentally ill. The narrative continues with additional allegations about events, failure to accommodate him and a poisoned work environment. In May 2010, he was advised that he could not take any further time off to work on the mental health committee.

19The respondents submit that the allegations predating one year prior to February 1, 2011, when the Application was filed, should be dismissed as untimely. They submit that untimely allegations cannot be brought before the Tribunal as context or for history and cite the decision in Sutherland v. District School Board Ontario North East, 2010 HRTO 2270, which states at para. 21:

I do not agree with the applicants’ position that where a poisoned work environment is alleged that the time limits in the Code are in effect suspended. There is nothing in the language that suggests that this is the case. The overarching intent of the section has to be in large part to ensure fairness between the parties, both in ensuring that these allegations are brought forward expeditiously, and equally that respondents need not respond to allegations from the distant past. I do not see that legislative balancing being undone simply because what is alleged is a poisoned work environment or where as in the case the applicants state that they are not seeking a remedy for the otherwise untimely allegations but only relying on them to establish the poisoned environment that ultimately culminated in their removal. It is inherently unfair to have to respond to allegations that are very dated, no matter what purpose their being tendered is intended to serve.

20The respondents submit, therefore, that the Tribunal cannot hear the applicant’s allegations dating from 2003 to 2009 for context.

21The respondents submit that the applicant has offered no explanation for why he did not file his Application in a timely fashion. The respondents submit that the applicant has offered no medical explanation for failing to exercise his rights, and note that the applicant was at work throughout the relevant period.

22The respondents submit that the applicant has offered no good faith explanation for his delay. Further, the respondents submit that it can be “presumed” that they would be prejudiced in attempting to answer to these allegations. They submit that witnesses’ memories have dimmed over time and that by not being aware of the allegations earlier, they did not have “the opportunity to respond contemporaneously and to preserve documents accordingly”.

23The applicant submits that the respondent was “well aware of the issues” and submits that he made the application in good faith. He submits that there is no prejudice to the respondents in the delay. He submits that he has experienced PTSD for a long time and that he was too afraid to come forward to the employer regarding his illness for fear of alleged stigmatization associated with mental illness at the respondent employer. He submits that he “decided to go the route of asking for accommodation” and that he made many “internal requests” for accommodation. He submits that the details of what he alleges in the earlier period are there to “help support my case”. He submits that he had hoped that the respondent employer would have recognized and understood his situation over the years. He submits that he tried to work within the respondent employer’s system and that he would be prejudiced if the Application is not permitted to proceed in its entirety.

24According to section 34(1)(b) of the Code, an allegation prior to the one-year period before the filing of the Application is timely if it was part of a series of events. Neither party has made submissions regarding whether the applicant’s allegations may be considered part of a series of events.

25In considering whether allegations may be considered part of a series of events, the Tribunal has generally found that events are not part of a series of incidents if there is a break in the temporal connection between them. I accept and agree with the reasoning in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series”.

26In determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues. See Aberdeen v. University of Toronto, 2010 HRTO 2514.

27In his narrative, the applicant discusses his October 2008 discipline and its connection with his disability. The next set of allegations involve decisions taken in 2009 with respect to the mental health committee and the motor vehicle accident in November 2009. His next allegation relates to his request for accommodation in December 2009. The next incident occurs in March 2010. .

28I find that the allegation of a failure to accommodate the applicant’s disability in December 2009 is timely, as it can be considered to be part of a series of events with the timely allegations in this Application regarding the employer’s failure to accommodate him in 2010. It may be considered therefore to be part of a pattern of conduct.

29The remaining 2009 allegations with respect to the motor vehicle accident and the mental health committee bear little or no resemblance to the timely allegations and therefore I do not find that they form part of a series of events with those allegations. Other than the reference to the November 2009 motor vehicle accident, the allegations regarding the respondent employer’s actions throughout 2009 appear to relate to the applicant’s committee work. Though I note that he also stated that in May 2010, he was advised that he could not take any further time off to work on the mental health committee, I do not find that these are allegations of a breach of the Code. They do not appear to be related to allegations that he has been discriminated against because of his disability. Rather, the applicant has related the allegations very specifically to his committee work and what he appears to allege is the respondents’ lack of support for the committee. I find that they relate to discrete and separate issues and do not form part of a series of events with his timely allegations of discrimination due to his disability contrary to the Code. Similarly, with regard to the applicant’s reference to his November 2009 motor vehicle accident which he alleges occurred due to stress, this is not an allegation of a breach of the Code and it does not form part of a series of incidents with any of the timely allegations in the Application.

30While the applicant’s allegation that the October 2008 charge against him was laid without due consideration for his disability, there is a gap of more than one year between that event and the next event which I have found forms part of a series of events with the timely allegations, being the allegation regarding the December 2009 failure to accommodate his disability. As noted above, such a temporal gap has generally been found to interrupt a series of events and I find no reason in this case to deviate from this reasoning. Accordingly, I find that allegations relating to events prior to December 2009 do not form part of a series of events and they are untimely.

31In deciding whether to exercise my discretion to consider the allegations about the untimely events pursuant to section 31(2), I must be satisfied that the delay in complaining about those events was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 124, the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective that human rights claims should be dealt with expeditiously. The Code requires an individual to act with all due diligence and file an application within one year when seeking to pursue a human rights claim. Where the Tribunal is not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, it has no power to relieve against the one-year time limit and to determine the application.

32In explaining the delay, the applicant submits that he decided to use the internal mechanisms available to him to seek accommodation, he submits the respondent employer was “well aware” of his concerns and he also submits that he was hesitant to come forward to the employer regarding his illness for fear of alleged stigmatization associated with mental illness. Though the applicant has indicated a fear of coming forward for fear of being stigmatized, it appears that he has in fact come forward to his employer and sought accommodation and made his employer “well aware” of his concerns. The Tribunal has found that good faith requires that the applicant show more than simply the absence of bad faith. In circumstances where the applicant was aware of his rights in addressing concerns internally with the employer, and where he did so on a number of occasions over the years, I cannot find that the delay in filing this Application was incurred in good faith.

33In view of my finding with regard to the applicant’s reasons for delay, it is not necessary for me to consider the respondents’ submissions regarding substantial prejudice.

34I therefore find that the circumstances in subsection 34(2) do not exist and the allegations concerning events prior to December 2009 cannot proceed.