Carmen Calderon v. Pilot Plumbing Products Inc., 2012 HRTO 254

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carmen Calderon

Applicant

-and-

Pilot Plumbing Products Inc.

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: February 6, 2012

Citation: 2012 HRTO 254

Indexed As: Calderon v. Pilot Plumbing Products Inc.

Written submissions

Cameron Calderon, Applicant ) Michelle T. Friedman, Counsel

Pilot Plumbing Products Inc, Respondent ) Frank Di Matteo, Representative

1On September 13, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against her in employment based on disability and sex.

2For the reasons that follow, the Application is dismissed pursuant to section 34 of the Code. I find that the Application was filed more than one year after the last alleged incident of discrimination and the applicant has not established that the delay in filing was in good faith within the meaning of the Code.

OVERVIEW

3The applicant states that she worked full-time for the respondent or its predecessor from 2001 to 2008. According to the applicant, she was last actively employed by the respondent in April 2008. Beginning in April 2008, she says she took a medical leave of absence, and then a maternity leave. She sought to return to work part-time in September 2009. She states that the respondent discriminated against her and failed to accommodate her disability when it terminated her employment in 2009 instead of allowing her to return to work part-time.

4The respondent has filed a Response in which it denies the allegations of discrimination. It states that the applicant’s position was eliminated in 2005, long before the applicant states she took medical and maternity leaves. The respondent states that the applicant’s position was eliminated because of corporate restructuring and that the applicant accepted a severance package.

5In a Case Assessment Direction (“CAD”) dated December 5, 2011, I invited further submissions from the parties on the following issues:

a) Was the Application filed within one year of the last alleged incident of discrimination?

b) If not, was the delay in filing the Application in good faith within the meaning of the Code?

c) If so, will any substantial prejudice result to any person affected by the delay?

d) Should the Application be dismissed because the applicant entered into a settlement agreement and/or signed a release concerning the subject-matter of the Application?

e) In the circumstances, would it be an abuse of process for the Application to proceed?

6Both parties have filed written submissions pursuant to the CAD.

ANALYSIS

7Section 34 of the Code 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.

8Pursuant to section 34, 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.

9The initial onus is on the applicant to show that any delay in filing the Application was incurred in good faith. If she is able to establish good faith, the onus shifts to the respondent to show that it will suffer substantial prejudice as a result of the delay in filing the Application.

When was the last alleged incident of discrimination?

10In its Response, the respondent states that the applicant’s employment was terminated in 2005. However, in its submissions in response to the CAD, the respondent accepts that the applicant’s employment was terminated in September 2009. Accordingly, there is no dispute that the last alleged incident of discrimination was the termination of the applicant’s employment in September, 2009.

Was the Application filed more than one year following the last alleged incident of discrimination?

11The Application was filed on September 13, 2011, approximately two years after the last alleged incident of discrimination and approximately 12 months outside the limitation period provided for in the Code.

Was the delay incurred in good faith?

12In determining the issue of good faith, the Tribunal has considered factors such as the length of the delay, whether Code-related reasons directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110; and Doyle v. Canarm, 2009 HRTO 674.

13In the Application, the applicant explains that the delay in filing arose because:

a) She understood that she had two years in which to file the Application;

b) She was required to spend several months negotiating severance pay with the respondent;

c) She was caring for her third child;

d) She was being treated for depression and injuries suffered in a motor vehicle accident;

e) She became pregnant again in 2010 and gave birth to her fourth child in 2011; and

f) Her spouse had a working relationship with the respondent and they feared they would lose income if they filed a claim against the respondent.

14In her written submissions filed pursuant to the CAD, the applicant also argues that the delay in filing the Application was for Code-related reasons. In addition to the reasons already raised in the Application, she states the need to attend clinics and physiotherapy placed enormous stress on her time, particularly as she was also caring for an infant and two other young children. She states that, given all of these circumstances, she was unable to pursue her rights under the Code until the Fall of 2012.

15In support of her arguments, the applicant has provided a psychological assessment dated April 5, 2009. She has also provided a copy of her treating physician’s clinical notes and records for the period of September 11, 2009 to October, 2010. The applicant has not provided any medical documentation concerning the period of October 2010 to September 2011.

16While the medical documents provided show that the applicant was contending with some health issues, they do not, in my view, establish a direct link between any disability and the late filing of the Application. As the Tribunal indicated in Kerry v. City of Ottawa, 2011 HRTO 1940, at para. 44, it is not appropriate to assume that a person with a mental health condition is unable, solely by virtue of that condition, to initiate a timely application. The applicant bears the onus of establishing that her disability directly impacted her ability to comply with the limitation period.

17Moreover, correspondence filed by the respondent indicates that the applicant was, in fact, able to pursue her rights (including her rights under the Code) during the period in question. The applicant had retained counsel by at least November, 2009. Her counsel corresponded with the respondent on November 9, 2009, asking the respondent to comply with its obligations under the Employment Standards Act and the Code. She also expressed a desire to discuss settlement offers.

18In further correspondence to the respondent, dated November 23, 2009, the applicant’s counsel indicated that the applicant would file an application with the Tribunal under the Code.

19The applicant has stated that the delay in filing the Application can be explained because of protracted negotiations with the respondent. The Tribunal has repeatedly held that 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. It was certainly open to the applicant to file a timely Application under the Code while she pursued discussions with the respondent.

20In terms of the applicant’s argument that she was not aware of the one-year limitation period in the Code, the Tribunal’s case law makes clear that while ignorance of one’s rights may amount to good faith, an applicant alleging this must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548, at paragraphs 12 and 14, and Lutz v. Toronto, 2009 HRTO 1137.

21In this case, the applicant did, in fact, make inquiries about her rights. Her counsel cited the Code in correspondence with the respondent as early as November 2009. I am not satisfied that the applicant had no reason to make inquiries about her rights or that, in the circumstances, her alleged ignorance of the limitation period amounts to good faith.

22Finally, the applicant argues that her fear that the respondent would reprise against her husband justifies the delay in filing the Application. I do not accept this argument. First, although she states that she did not file the Application earlier because she feared reprisal, the applicant did, in fact, advise the respondent as early as November 2009 that she would be filing an Application. Second, the Code contains express provisions regarding reprisal and fear of reprisal. It is not clear to me that fear of reprisal could, generally, constitute a good faith basis for delay.

23I find that the applicant did, in fact, pursue her legal rights in 2009 and that she raised Code-related issues at that time. I find that, while the applicant was contending with difficult health, family, and personal issues between September 2009 and September 2011, she has not established that Code-related reasons directly impeded her ability to file an Application during that time.

24For all of these reasons, the applicant has not satisfied me that the delay in filing the Application was in good faith within the meaning of section 34(2) of the Code.

DECISION

25The Application is dismissed pursuant to section 34 of the Code. The Application was filed more than one year after the last alleged incident of discrimination. I am not satisfied that the delay was incurred in good faith.