HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Harvey Dorriesfield
Applicant
-and-
Domtar Inc. and Communications, Energy and Paperworkers Union of Canada, Local 74
Respondents
decision
Adjudicator: David Muir
Indexed as: Dorriesfield v. Domtar
Appearances
Harvey Dorriesfield by his Litigation Guardian ) James Simmons and The Office of the Public Guardian and Trustee, ) Kathleen Stokes, Applicant ) Counsel
Domtar Inc., Respondents ) Sarah Crossley, ) Counsel )
Energy and Paperworkers Union of Canada, ) Jesse Kugler, Counsel Local 74 )
1This is an Application, filed on April 27, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that his right to be free from discrimination in employment on the basis of disability was infringed by the respondents.
2The applicant has identified Domtar Inc. (“Domtar”), his former employer, and the Communications, Energy and Paperworkers Union of Canada, Local 74 (“Union”), his former union, as respondents. The applicant was injured in a motor vehicle accident on January 28, 2008, and his affairs, including this Application, are being managed by the Office of the Public Guardian and Trustee (the “OPGT”).
3The applicant states that, at the material times at issue in this Application, he was a person with a disability - a sleep disorder. The applicant alleges that although Domtar was aware of his disability, it repeatedly disciplined him, and ultimately terminated his employment for being found asleep on the job. The applicant believes that Domtar’s conduct constitutes discrimination and a failure to accommodate. Domtar states that the applicant was terminated for just cause on June 27, 2007.
4The applicant alleges that the Union discriminated against him by, among other things, failing to represent him appropriately, failing to assist him in obtaining accommodation, and ignoring the medical documentation he had provided to it.
5The respondents have each filed Responses denying the allegations of discrimination. Both respondents state that the applicant failed to provide appropriate medical information despite repeated requests.
6Both respondents seek an Order dismissing the Application because it was filed more than one year after the last alleged incident of discrimination. This Decision deals with that issue. Other issues have been raised by the parties but, given my conclusions with respect to the timeliness of the Application, they need not be addressed.
PRIOR INTERIM DECISION
7The issue of delay raised by the respondents has been determined in large part in 2010 HRTO 2190. For convenience, the conclusions of that Interim Decision are set out here:
Section 34 of the Code states:
(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.
Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:
a. the delay was incurred in good faith; and
b. no substantial prejudice will result to any person affected by the delay.
The initial onus is on the applicant to show that the delay in filing the Application was incurred in good faith. If he is able to establish good faith, the onus shifts to the respondents to show that they will suffer substantial prejudice as a result of the delay in filing the Application.
Was the Application filed more than one year after the last alleged incident of discrimination?
In my view, the limitation period began to run on June 27, 2008 sic, the date of the applicant’s dismissal. I cannot accept that the applicant is able to effectively restart the limitation period by petitioning the respondents to revisit decisions they made almost two years earlier. For that reason, I do not accept that the Union’s March 2009 decision not to reactive the grievance or Domtar’s March 2009 decision not to reinstate the applicant constitute incidents of discrimination for the purposes of calculating the time limits in section 34 of the Code.
Similarly, the fact that the applicant may have had rights under a collective agreement does not effectively put the Code’s limitation period on pause. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991.
Thus, the limitation period began to run on June 27, 2007. The Application was filed on April 27, 2009, 22 months after the last incident of alleged discrimination and 10 months outside the Code’s limitation period.
Was the delay incurred in good faith?
I accept that the applicant was incapacitated and could not have asserted his legal rights from January 28, 2008 until the OPTG was appointed in March 26, 2008. The applicant has provided a good faith reason for this delay of approximately two months.
The applicant asserts that the OPTG did not immediately discover that the applicant had a cause of action under the Code. He argues that the delay between the OPTG’s appointment and its discovery of the cause of action was in good faith. As I have indicated, the applicant’s materials do not indicate when the discovery was made, although OPTG did begin making inquiries in mid December 2008. At issue is a delay of at least approximately eight months.
The issue of discoverability was addressed in Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:
Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).
It may be that the OPTG was unaware of any rights under the Code. However, the applicant’s submissions have not addressed whether or not the OPTG had reason to make inquiries over the eight month period in question. Thus, based on the materials before me, I cannot determine whether the delay was incurred in good faith.
The Registrar will schedule a three hour hearing to address the issue of whether the OPTG had reason to make inquires about the applicant’s rights under the Code between March 26, 2008 and that date the Application was filed.
ISSUE
8As set out above, the issue to be determined is whether the delay in filing the Application was incurred in good faith, and that determination requires me to decide when the OPGT had reason to make enquiries into the circumstances surrounding the applicant’s termination and file a timely application. Under the Code, an applicant has 12 months from the date of the incident of discrimination to file an application, although the Tribunal will accept a late application where it is satisfied that the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay. In this case, the Application was filed 22 months after the last incident of alleged discrimination.
Evidence and findings
9For the purpose of determining the issue of delay, I heard the evidence of Daniel Skwarok, an official of the OPGT, who was handling the applicant’s file. Mr. Skwarok adopted a detailed summary of his evidence and was examined by counsel for all parties. I also questioned the witness. A number of documents were admitted into evidence on consent of the parties. During the course of his evidence, Mr. Skwarok was observed reviewing a document, which turned out to be notes of various transactions in relation to the handling of the applicant’s file. Subject to some redactions that I determined were protected by solicitor-client privilege, this document was also entered into evidence on consent.
10Based on the evidence tendered by the parties, I have concluded that the OPGT had reason to make enquiries concerning the applicant’s Code rights by April 2008. The OPGT was appointed as the applicant’s guardian on March 26, 2008. Mr. Skwarok agreed that the issue of the applicant’s income would have been considered by the OPGT early in its involvement with the applicant, as applications for motor vehicle accident benefits under the Insurance Act were underway almost immediately after the applicant’s motor vehicle accident and were one of the issues he was dealing with. Mr. Skwarok also testified that the applicant had advised him that he was terminated for sleeping on the job and that he thought that the termination was unfair. It does not appear that the applicant specifically identified that he had a disability at this time. Mr. Skwarok testified that this conversation would have occurred very early in their relationship, perhaps in April 2008.
11Although there may have been other considerations at play it is reasonably clear that as a result of the applicant’s advice that his termination was unfair the OPGT did begin to make enquiries of the employer and the union. On July 18, 2008, the OPGT contacted the Union and was told that the applicant had been fired and the Union had attempted to assist him. The OPGT was also told, at that time, by the Union that the applicant had not complied with request to provide medical information in support of a claim that he had a medical condition that led to his dismissal. On July 23, 2008, the OPGT wrote to Domtar asking for information with respect to the applicant’s termination and the reasons for it. Domtar responded with limited information, but it did provide the termination letter, which provided in part as follows, “in light of your return to work agreement” the applicant was being terminated for being found, “once again” sleeping on the job.
12On September 9, 2008, the OPGT wrote to the Union again asking “if there was any possibility of the Union reopening the case, if for example, “new evidence was presented”. The letter goes on to state:
Mr. Dorriesfield claims that he was fired because he had a medical condition that contributed to his being dismissed. I understand that he may not have provided information requested of him.
13On the same date and probably before the letter above was sent, Mr. Skwarok was advised by in-house counsel of the OPGT that a decision with respect to the filing of a human rights complaint had not yet been made.
14On September 29, 2008, the OPGT wrote to a physician seeking information with respect to the applicant’s sleep disorder and whether it was related to his dismissal. Efforts to get the Union back involved continued with some success. After further medical information was received by the OPGT in early December 2008, outside legal counsel was retained and wrote to the Union on December 15, 2008 asking it to re-open the grievance file. This request was forwarded to the Union’s counsel who responded on February 9, 2009 that the Union could not re-open the grievance file. The Union was then asked if it could approach the employer and request reinstatement of the applicant solely for the purpose of allowing the applicant to access long term disability benefits. The Union agreed to approach Domtar with the request. It is not until after the employer declined to reinstate the applicant that the OPGT began the formal process of securing approval to file this Application sometime after March 16, 2009. Approval was obtained on April 17, 2009 and the Application was filed on April 27, 2009.
15As the Tribunal has stated on many occasions, 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. See for example Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras.24-25; Barnes v. Vivoda, 2011 HRTO 1373. I have no hesitation in concluding that the applicant, through the OPGT, has not acted in bad faith, in any respect, in this matter. On the other hand, the Tribunal has also set a fairly high onus on applicants to provide a cogent explanation for the delay. The mandatory one year limitation period is consistent with the Code’s objective that human rights claims are dealt with expeditiously. The Tribunal has interpreted the provisions of section 34(2) as requiring that applicants act “with all due diligence” in proceeding with their application if they believe that their rights have been violated. See for example, Miller, supra at para.24; Mafinezam v. University of Toronto, 2010 HRTO 1495 at para.11; Chan v. Toronto Police Services Board, 2011 HRTO 2171 at para.19.
16The OPGT was attempting to manage the applicant’s affairs as best it could and, as indicated above, there were other issues it had to deal with. However, as is clear from the narrative above, the issue of the applicant’s termination with its significant consequences for his income was squarely in issue by April 2008. As a consequence, the OPGT did begin to make enquiries. In July 2008, the OPGT was told by the Union that the applicant had been fired and was provided by the respondent employer with the termination letter. By September 2008, in its letter to the Union, the OPGT confirmed that the applicant was asserting that his dismissal was, in whole or in part, the consequence of an alleged disability.
17The OPGT relies heavily on the fact that it did not have sufficient medical evidence to make the claim until early December 2008. However, as the Tribunal has determined in prior cases, the time lines under the Code are not suspended while a party gathers evidence in support of their claim of a violation. See Radomir Krajisnik v. Linamar Corp. 2011 HRTO 143.
18The OPGT suggested in their final submissions that the respondents had withheld information in their possession that would have assisted it in making its determination. While it appears that the employer was less than fulsome in its responses to the OPGT’s enquiries - only providing precisely what was asked for - it is not clear that there was any withholding of information such as would inhibit the OPGT from filing the Application. In any case, I find that the information provided by the applicant in April 2008 was more than sufficient to allow the OPGT to proceed.
19In my view, based on the evidence, by April 2008 the OPGT had reason to make enquiries of the applicant’s Code rights; by that point the applicant had informed the OPGT that he believed his discharge over sleeping on the job to have been unfair and the OPGT had begun considering the applicant’s income for the purpose of motor vehicle accident benefits. Yet, the Application was not filed for another year.
20Further, even if I were to accept that the OPGT did not have reason to make enquiries until July 2008 when it was told by the Union that the applicant had been fired and it received a copy of the applicant’s termination letter, then certainly by the time the OPGT wrote the September 9, 2008 letter to the Union, the OPGT had knowledge of the essential facts that it believed supported a claim that the applicant’s discharge was discriminatory. Mr. Skwarok agreed that he had concluded likely in September/October 2008 that the applicant’s issues with respect to his termination should be pursued further. Yet, the Application was not filed for approximately another seven months.
21Rather than filing a human rights application with the Tribunal, the OPGT sought to ask the Union if it would re-open the grievance file and it sought further medical information. What legal advice was obtained is not in evidence, but Mr. Skwarok was clear when he stated that he wanted to explore other avenues of redress before commencing human rights litigation. It is settled law that pursuing other avenues of redress is not a good faith explanation for delay. See Rowe v. 416 Community Support Centre for Women, 2011 HRTO 710; Cartier v. Northeast Mental Health Centre 2009 HRTO 1670.
22In the circumstances of this case and for all of the above reasons, I find that the applicant has not provided a reasonable explanation for the lengthy delay in this case. Accordingly, I am not satisfied that the delay in filing this Application was incurred in good faith within the meaning of the Code. Given the absence of evidence that the delay was incurred in good faith, it is unnecessary to deal with the issue of potential prejudice to the respondents. The Tribunal is without jurisdiction to deal with this Application because it was filed more than one year after the last alleged incident of discrimination. The Application is, accordingly, dismissed.
Dated at Toronto, this 5th day of January, 2012.
”signed by”__________
David Muir
Vice-chair