Charles Taylor v. Pride International Inc., 2012 HRTO 413

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles Taylor

Applicant

-and-

Pride International Inc.

Respondent

DECISION

Adjudicator: Eric Whist

Date: February 27, 2011

Citation: 2012 HRTO 413

Indexed as: Taylor v. Pride International Inc.

1This Application was filed on July 27, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability. This Decision addresses the respondent’s request that the Application be dismissed for delay.

BACKROUND

2On October 28, 2011 the respondent filed its Response to the Application along with a Request for an Order During Proceedings requesting that Application be dismissed on the basis of delay, that the Application failed to meet the requirements of section 34 of the Code. Section 34(1) requires that an application be filed within one year of the last incident of alleged discrimination. Section 34(2) provides that the Tribunal can accept an Application beyond the one year filing requirement if the Tribunal is satisfied that the delay in filing was incurred in good faith.

3The respondent submits that the last incident of alleged discrimination occurred on April 10, 2011 when the applicant’s employment with the respondent was terminated and that the Application is dated July 20, 2011, three months and seven days beyond the one year time limit set out in section 34(1).

4The respondent submits that the applicant did not satisfy his burden to show that the late filing of his application was incurred in good faith as required by section 34(2). The respondent notes that in his Application the applicant stated that he began filling in his Application in September 2010 but did not finish and submit the Application until July 2011. The respondent submits that applicant provided no reasonable explanation for why he took ten months to complete his Application.

5The respondent further notes that in his Application the applicant states he was unable to focus on the Application because of the medication he was taking and further states he was frustrated with his dealings with the respondent which also prevented him from completing his application on time. The respondent submits that these responses do not provide a reasonable explanation for the delay in filing.

6The respondent submits that while the applicant claims he was unable to complete and submit his Application, the respondent was in receipt of letters from December 2010, February and May 2011 that indicate that the applicant was participating in a Workplace Safety and Insurance Board (“WSIB”) claim and appeal during the period the applicant was required to file his Application.

7Finally, the respondent submits that it would be prejudiced if the Application were to proceed given that certain witnesses would not be available.

8On November 11, 2011 the applicant provided written submissions in response to the respondent’s request to dismiss. The applicant does not dispute that his application was filed beyond the one year timeframe. The applicant submits that the delay was incurred in good faith as it was principally attributable to the applicant having to manage a number of ongoing medical issues that prevented him from filing his Application in a more timely fashion.

9The applicant submits that he became aware that he may have a claim under the Code in August 2010 and began to prepare an Application. He submits that he was not able to proceed with his Application because he was still recovering from back surgery that took place on May 27, 2010. The applicant submits that his recovery from surgery was slow, that physiotherapy was not effective, that he learned that he had permanent nerve damage and that he had to manage his pain and rely on medication. He submits that he was left angry and depressed by his surgery and his slow recovery.

10The applicant submits that he was discharged from physiotherapy for his back in January 2011 but had further difficulties with muscles in his shoulder and back and right leg pain that required further physiotherapy until August 2011. He submits that in June 2011 his doctor confirmed that further surgery would not be effective. He submits that he subsequently began to turn his anger into “fighting back” and that he subsequently returned to his Application and proceeded to complete and file it on July 27, 2011.

11The applicant submits that he has further medical documents to support his submissions and that his family doctor is available to explain that the applicant would see her every two weeks for 30 minutes and that the applicant was having difficulty finding someone to provide further counseling.

12The applicant submits that his involvement with WSIB in 2010-2011 was not time intensive and should not be considered as evidence that he was able to pursue other legal recourses at the time he was unable to pursue his Application. The applicant submits that the February 2011 letter from WSIB that the respondent referred to was related to a single telephone call made by the applicant and that the December 2010 letter from the WSIB referred to by the respondent was related to an appeal before the WSIB that was prepared by the applicant’s lawyer rather than the applicant.

ANALYSIS AND DECISION

13Section 34 of the Code provides:

(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 applicant does not dispute that his Application fails to meet the one year requirement set out in section 34(1). Rather he relies on section 34(2) submitting that the delay in filing his Application was incurred in good faith.

15The Tribunal’s jurisprudence establishes that the onus is on an applicant to demonstrate that the delay in filing the Application was in good faith. In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) directly impeded an applicant’s ability to file an application and whether an applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v.Canarm Ltd. 2009 HRTO 674. As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant 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.

16The Tribunal has also determined that when considering whether a delay may be related to a disability, that it requires medical evidence that an applicant’s disability was so debilitating so as to prevent an applicant from pursuing his or her legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317. See also, for example, Reid v. Ontario March of Dimes, , 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission 2010 HRTO 1360.

17I do not find the applicant’s medical information constitutes persuasive evidence that the applicant’s situation was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion. I accept that the physical recovery from back surgery and further attendant physical difficulties can be difficult. I accept that the applicant may have been subject to depression and been angry about his overall health. However, the applicant has not established that his described situation was such that it impeded his ability to file an Application from August 2010 when he began preparing his Application until July 2011 when he finally filed the Application. I am prepared to make this finding even in light of the applicant’s submission that he has further medical evidence that he could provide. The information before me simply does not indicate that the applicant would have been unable to file an Application anytime within the one year time requirement because of an ongoing or persistent medical condition.

18The applicant also acknowledges that he was involved in a claims process before the WSIB that took place during at least part of the period he claims he was unable to proceed with his Application. It appears that the applicant also had a lawyer to assist him in this claims process. While the applicant downplayed the time and effort this claim took, I see this involvement in another legal process as evidence that the applicant could and did pursue other legal rights within one year of the termination of his employment. I do not see, given this circumstance, why he could not complete and file his Application in a more timely fashion.

19For all these reasons the Application is dismissed.