Bourque v. Sarnia (City), 2012 HRTO 2314

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Bourque

Applicant

-and-

The Corporation of the City of Sarnia

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 10, 2012

Citation: 2012 HRTO 2314

Indexed as: Bourque v. Sarnia (City)

WRITTEN SUBMISSIONS

Patricia Bourque, Applicant

Peter Mancini, Representative

The Corporation of the City of Sarnia, Respondent

Paula Rusak, Counsel

1This is an Application filed on November 23, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. This Interim Decision addresses a request by the applicant to have her Application reactivated and a request by the respondent to dismiss the Application for delay.

BACKGROUND

2The applicant, who was a bus driver for the respondent, alleges that, following a recurrence of a work-related injury, the respondent failed to provide her with modified duties. The applicant states that the respondent only offered her pre-injury job, which she was medically no longer able to do. The reason the applicant states she was unable to return to bus driving is that she was suffering from dizziness and blackouts, which resulted in the suspension of her driver’s license.

3The applicant was on WSIB benefits following her first injury on the job in March 2003 and recurrence of that injury in September 2005. In January 2006, the WSIB claims adjudicator determined that she was able to return to her pre-injury job as a bus driver. The applicant states that as a result of that determination, the respondent did not offer her modified work. The applicant states in her Application that the respondent only offered her modified duties in April 2009, in response to a request from the WSIB adjudicator asking the respondent to provide the WSIB information on whether modified duties were available. She returned to work in May 2009.

4On February 8, 2010, the respondent filed a Request for an Order During Proceedings (RFOP) requesting that the Application be dismissed for delay. The Tribunal did not consider this RFOP in light of the parties’ expressed willingness to participate in mediation. The mediation was unsuccessful.

5The Tribunal subsequently notified the parties that it might be necessary to address an issue of deferral before the respondent’s request to dismiss the Application for delay. In an Interim Decision dated January, 19, 2011, 2011 HRTO 142, the Tribunal deferred the Application in light of ongoing appeals of WSIB decisions made by the parties. The Interim Decision also noted the procedure by which the Application could be reactivated and brought back before the Tribunal after the conclusion of the proceedings before the WSIB and the WSIAT (the Workplace Safety and Insurance Appeals Tribunal).

6On November 9, 2012 the applicant filed an RFOP requesting that the Application be reactivated as WSIAT had rendered a decision on November 1, 2012 in relation to the WSIB decisions the parties had appealed.

7On November 20, 2012 the respondent filed a response to the applicant’s RFOP requesting that it be denied on the grounds that the WSIAT decision completely disposed of the issues set out in the Application.

8On November 21, 2012 the respondent wrote to the Tribunal to request that the Tribunal first consider the respondent’s February 8, 2010 request that the Application be dismissed for delay prior to any determination as to whether the November 1, 2010, WSIAT decision fully disposed of the issues raised in the Application.

9On November 21, 2012 the applicant wrote to the Tribunal to briefly state that she disputed whether the WSIAT decision has appropriately dealt with the Application and to take the position that the Application should not be dismissed for delay as the respondent’s discriminatory treatment of the applicant which began in 2006 lasted until April 2009 which is within the required one year time limit for filing an application given that the Application was filed on November 23, 2009.

REQUEST TO RE-ACTIVATE

10The applicant’s request to reactivate is granted as it was filed within 60 days of the conclusion of the “other proceeding” as required by the Tribunal’s Rules.

11While the respondent takes the position that the request to reactivate should be denied because the WSIAT decision disposes of the Application- which is an argument that the Applications should be dismissed pursuant to s. 45.1 of the Code- this is not a basis to deny a request to reactivate. Until such time that an application is re-activated and consequently before the Tribunal, the Tribunal will not determine a request to dismiss an application on the basis of jurisdiction.

REQUEST TO DISMISS FOR DELAY

12The respondent has requested that the Tribunal consider its RFOP requesting the Application be dismissed for delay that the respondent initially filed on February 8, 2010 along with the respondent’s Response to the Application. The respondent has not, as yet, made submissions on the issue of whether the Application should be dismissed pursuant to s. 45.1 of the Code applies. In my view it is reasonable that the Tribunal now consider the request to dismiss for delay.

13Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances. Section 34 specifically states:

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.

14The respondent submits that the Application is untimely pursuant to s. 34(1) because the applicant identifies three incidents of alleged discrimination as occurring in February 2006, May 2006 and March 2008 when, in the applicant’s view, the respondent decided not to accommodate the applicant’s disability by providing the applicant appropriate modified work. These incidents all occurred more than one year before the applicant filed her Application on November 23, 2009.

15The applicant disputes this arguing that the respondent also did not offer to accommodate the applicant’s disability in March 2009 and that this further incident of discrimination makes all of the applicant’s allegations of earlier incidents of discrimination timely pursuant to s. 34(1)(b).

16In her Application, the applicant alleges that in March 2008 a WSIB adjudicator requested that the respondent provide the WSIB with information as to whether modified positions were available to the applicant based on her permanent restrictions. The applicant alleges that subsequently no modified job offer was received by the applicant until April 8, 2009 and that the applicant returned to modified duties on May 13, 2009. The applicant does not allege in her Application that the modified job that she was offered or which she returned to in 2009 was an issue of concern.

17In her Reply the applicant responds to the respondent’s request to dismiss for delay by stating that the applicant was discriminated against from January 13, 2006 until April 8, 2009 when the respondent finally presented the applicant with a suitable position within her restrictions and it is on this basis that her application is timely.

18In her November 21, 2012 letter to the Tribunal, the applicant does provide some further information by stating that the respondent did not accommodate the applicant’s disability when requested to do so by the WSIB on March 11, 2009 and March 30, 2009.

19It is not immediately clear, based on the information presently before the Tribunal, that there is a distinct and identifiable alleged incident of discrimination that takes place after March 2008. It is possible that the applicant’s contention is that the respondent failed to take any action in the period of March 2008 to March or April 2009 and that it is this continuous failure to take any action until such time that it did offer a modified position that makes the Application timely. This would raise a question of whether Application is indeed timely pursuant to s 34(1) of the Code. Under the circumstances, I find it appropriate that the Tribunal schedule a half day teleconference hearing to consider the respondent’s request to dismiss for delay. The participants on the teleconference should be prepared to provide submissions and, if necessary, evidence, on the following issues:

Is the Application made within one year after the last discriminatory incident or, if there was a series of incidents, within one year after the last incident in the series, as required by section 34(1)?

If not, was the delay incurred in good faith and is there any substantial prejudice to any person affected by the Application if the Tribunal exercises its discretion to accept the Application pursuant to section 34(2)?

20If the parties wish to rely on any supporting material for the purpose of the teleconference (including submissions, facts or case law not already provided in the Application, Response, Reply, Requests and related submissions), they are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the teleconference.

21The parties’ attention is drawn to the Tribunal’s decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, which may provide some guidance on the distinction between an act of discrimination with continuing effects and a succession of separate acts or incidents of discrimination. The parties may also wish to reference the Tribunal’s decisions on how the Tribunal exercises its discretion in considering whether the delay in filing an Application has been incurred in good faith pursuant to s.34(2). See, for example, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

22I am not seized of this matter.

ORDER

• The Application is reactivated.

• A half day teleconference hearing will be scheduled to determine whether the Application should be dismissed for delay.

Dated at Toronto, this 10th day of December, 2012.

“Signed by”

Eric Whist

Vice-chair

CORRECTION

The decision released on December 10, 2012 contains a typographical error in paragraph 18 which refers to a May 21, 2012 letter from the applicant to the Tribunal. It should have referred to a November 21, 2012 letter from the applicant to the Tribunal. The error is corrected to: “November 21, 2012”.