HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Smith
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Ontario Teachers’ Pension Plan Board and Ontario Teachers’ Federation
Respondents
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Smith v. Ontario (Education)
1On June 11, 2010, the applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She alleges discrimination in employment, contracts, goods, services and facilities on the grounds of disability.
2The applicant argues that the Ontario Teachers’ Pension Plan (“Pension Plan”) discriminates against her because, when she was on reduced work load for medical reasons, the applicant was unable to:
a. accrue full-time pension credit service; and
b. purchase pension credit service equivalent to that of a full-time member.
3Each of the respondents has filed a Response in which they deny the allegations of discrimination. The matter has been set down for hearing in May, 2012.
4In its Response and in a Request for an Order During Proceedings (“Request”) filed on October 13, 2011, the respondent, Her Majesty the Queen in Right of Ontario (“Ontario”) seeks the dismissal of the Application for delay pursuant to section 34 of the Code. Ontario has filed detailed submissions in support of its Request.
5The applicant has filed a Response to the Request, along with detailed submissions and a personal statement. The applicant argues that the Application was filed within the one year limitation period and that, in any event, any delay was incurred in good faith.
6For the reasons that follow, the Application is dismissed for delay pursuant to section 34 of the Code. I find that the Application was filed more than one year after the last alleged incident of alleged harassment and that the applicant has not provided a good faith reason for the delay, within the meaning of the Code.
THE FACTS
7Most of the facts material to the preliminary issue of delay are not in dispute.
8The applicant is a retired teacher. For disability-related reasons, she worked part-time for most of the period between 1997 and her retirement in December of 2006. Except for the 2003 – 2004 school year, when she attempted to return to work on a full-time basis, the applicant received school board-approved half-time medical leave from 1997 to 2006.
9By operation of the Pension Plan, members who work part-time due to disability do not accrue credited service at the same rate as members who work full-time. Similarly, they do not have the opportunity to purchase credited service at the same rate as full-time members.
10Beginning in 1998, the applicant made a number of applications to the Pension Board in relation to pension credits and the purchase of credited service. There appears to be a slight discrepancy between the parties as to the number of Pension Board applications filed by the applicant between 1998 and 2006. However, even based only on the applicant’s submissions, it is clear that she made at least the following applications to the Pension Board:
a. On February 20, 1998, the applicant submitted an application to the Pension Board in which she asked that her pension contributions remain those of a full-time teacher. The Pension Board responded to her application on September 16, 1998, stating that it was unable to consider her application until the Ontario Court of Appeal ruled on a related case;
b. The applicant submitted a second application in which she sought to purchase credited service. In a letter dated February 1999, the Pension Board informed the applicant that it could not determine her application because the judicial determination remained outstanding;
c. On November 14, 2006, prior to her retirement, the applicant submitted further applications to the Pension Board. On December 14, 2006, the Pension Board denied the applicant’s requests. It stated that its decision was based on the Ontario Court of Appeal’s decision in Ontario (Minister of Education) v. Ontario Teachers’ Pension Plan Board 1998 CanLII 1539 Ont. C.A; and
d. In 2009, the applicant made a final application to the Pension Board. In a letter dated June 5, 2009, the Pension Board denied her application and stated that “no further action can be taken”.
11In addition to these steps, the applicant made a number of other attempts to raise concerns regarding the Pension Plan. For example:
a. She contacted her Member of Provincial Parliament (“M.P.P.”) in 2007, who ultimately contacted the Pension Board on the applicant’s behalf;
b. In April 2008, the M.P.P.’s assistant suggested that the applicant contact the Ombudsperson and the Ontario Human Rights Commission. The applicant contacted the Ontario Ombudsman Office and the Ontario Human Rights Commission in April 2008;
c. In June 2008, the applicant received assistance from a legal clinic, following which she again contacted the Ontario Human Rights Commission. The applicant states that the Commission referred her to her union;
d. In approximately May 2008, the applicant began preparing an appeal to the Benefits Adjudication Committee. In December 2009, she was notified that the Benefits Adjudication Committee did not have jurisdiction over her appeal;
e. The applicant contacted her union in June of 2008.
f. The applicant contacted the Human Rights Legal Support Centre in May of 2009;
g. In at least the early spring of 2010, the applicant worked with a lawyer at the Human Rights Legal Support Centre to “prepare a basic outline of [her] narrative” and “to develop a basic understanding of the legal issues involved”; and
h. In May of 2010, the applicant retained counsel to assist her with this Application.
12This Application was ultimately filed on June 11, 2010.
ANALYSIS
13Section 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.
14Pursuant 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.
15The 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 respondents to show that they will suffer substantial prejudice as a result of the delay in filing the Application.
When was the last incident of discrimination?
16The applicant argues that the last incident of discrimination took place on June 5, 2009, when her final application to purchase pension credited service was denied. She states that, along with the June 5, 2009 letter, the denial of earlier applications for the purchase of pension service, amendments to the Pension Plan, the union’s failure to support her appeal, and the denial of her appeal form part of a series of incidents of discrimination.
17Ontario disputes this. Among other things, it submits that the limitation period began to run in November 1999, when the applicant’s applications to purchase pension credit were first denied. Ontario argues that, as of this date, the applicant knew that her pension would accrue based on her reduced workload and that, going forward, she would not be eligible to purchase pension credit.
18It is not necessary for me to resolve this dispute or to make any finding regarding when the limitation period began to run. It is also not necessary for me to determine whether the alleged discrimination constitutes a series of incidents. For the purposes of determining the preliminary issue of timeliness, I am prepared to accept (without deciding) that the last alleged incident of discrimination took place on June 5, 2009. I note that the applicant has not alleged any continuing discrimination beyond the June 5, 2009 date.
Was the Application filed within one year of the last alleged incident of discrimination?
19The Application was filed on June 11, 2010, a year and six days after the last alleged incident of discrimination.
Was the delay in filing the Application in good faith?
20The applicant argues that, in the circumstances, the delay was in good faith because:
a. between 2006 and 2010, the applicant took a number of steps to determine the right course of action;
b. the nature of her case is complex and it took time for the applicant to obtain information, gain sufficient understanding, and determine the right course of action;
c. the applicant had no reason to make inquiries about her rights under the Code before mid-2008. When she did become aware of her claim under the Code, she acted with reasonable diligence to file the Application; and
d. the applicant has no legal or pension expertise and it required considerable effort and assistance for her to obtain information about and understand the intricacies of the Pension Plan. Until January 2010, she was not aware of who would have been a proper respondent to this Application.
21In determining whether a delay in filing an application was in 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.
22Given my earlier conclusion, the issue in this case is a delay of six days. As the Tribunal explained in Moffat v. Northampton Group, 2010 HRTO 519 at para. 14, while the length of the delay in filing an Application is a factor to be considered, the applicant must nevertheless establish that the delay (whatever its duration) was incurred in good faith. This is because the Tribunal does not have jurisdiction to hear applications filed outside the time permitted by the Code unless the delay, however short, was incurred in good faith. See also Cartier v. Northeast Mental Health Centre, 2009 HRTO 1690 at para. 20.
[23 The applicant’s explanations for the delay relate to challenges she faced between 2006 and 2009 in understanding the Pension Plan and obtaining information and assistance.
24While it is not strictly necessary for me to determine the issue, I question whether these efforts or the complexity of the issues could amount to good faith within the meaning of the Code. While I do not doubt that the applicant spent considerable time and energy in deciding how best to challenge the Pension Plan,, between 2007 and 2010, she was able to drawn on considerable resources. She initiated proceedings before the Pension Board and the Benefits Adjudication Committee, she communicated with the Ombudsperson, the Ontario Human Rights Commission and the Human Rights Legal Support Centre. She was ultimately able to consult three different lawyers. While I appreciate that she was gathering information and obtaining assistance during this period, it was certainly open to her to file an Application under the Code while she pursued her rights elsewhere. By at least the spring of 2008, the applicant knew that she had a potential claim under the Code.
25It is not clear to me that the applicant has reasonably explained her delay in filing the Application from the period when she became aware of her claim under the Code. It is also not clear that, applying the principles set out in Lutz v. Toronto (City), 2009 HRTO 1137, the applicant has established that she had no reason to make any inquiries about enforcing her rights under the Code until 2008.
26In any event, I find that the applicant has provided no reasonable explanation for the six day delay in filing the Application in June of 2010. By early June 2010, the applicant had been aware of her claim under the Code for approximately two years, she had secured the services of counsel, and she had identified the proper respondents to the claim. Even accepting that applicant found the complexities of the case challenging, by early June 2010, she had resolved those challenges. It is clear that, by then, she had decided on a course of action and had obtained the assistance she felt she required. For these reasons, I do not accept that the applicant’s lack of expertise or the complexity of the case amount to good faith reasons for the six day delay.
27To the extent that the applicant delayed filing the Application to consult her union and pursue an appeal before the Benefit Adjudication Committee, this is not a good faith reason for the delay. 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. Again, it was certainly open to the applicant to file a timely Application under the Code while she pursued her rights under the collective agreement or before the Pension Board or the Benefits Adjudication Committee.
28For 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.
SUMMARY
29The Application was filed on June 12, 2010. Even based on the applicant’s argument that the last incident of alleged discrimination occurred on June 5, 2009, the Application was filed outside the limitation period, namely one year and six days after the last alleged incident of discrimination. I note that the applicant has not alleged any continuing discrimination beyond June 5, 2009.
30The applicant has provided no basis to conclude that the delay was in good faith within the meaning of the Code.
31For all of these reasons, the Application is dismissed.
32The hearing dates scheduled in May 2012 are cancelled.
Dated at Toronto, this 1st day of March, 2012.
”signed by”
Michelle Flaherty
Vice-chair