Tamara Moro v. Thames Valley District School Board, 2012 HRTO 436

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamara Moro Applicant

-and-

Thames Valley District School Board Respondent

DECISION

Adjudicator: Ena Chadha Date: March 1, 2012 Citation: 2012 HRTO 436 Indexed as: Moro v. Thames Valley District School Board

ORAL & WRITTEN SUBMISSIONS BY

Tamara Moro, Applicant ) David Sanders, Counsel Thames Valley District ) Peter Thorup and School Board, Respondent ) Ron LeClair, Counsel

INTRODUCTION

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 21, 2011, alleging discrimination and reprisal with respect to employment on the basis of disability and sex.

2The applicant was a teacher with the respondent school board. The applicant alleges that starting in 1998 she experienced conflict with her department head, which resulted in a poisoned work environment, causing her to go on medical leave in 2002-2003. The applicant alleges that upon returning from disability leave in 2003 and onwards, the respondent failed to accommodate her disability and that she was subjected to various incidents of harassment, including sexual harassment, and reprisal, such as unsafe teaching assignments. On April 2, 2007, while she was teaching, a student threw a firecracker at the applicant’s head. The applicant alleges that, because the respondent failed to take the incident seriously and to properly address her concerns, she had to go on disability leave. The applicant was scheduled to return to work in 2008; however, the applicant alleges that the respondent refused to accommodate her disability-related needs by providing her with an outside secondment. The applicant alleges she was ultimately compelled to quit her job because of the respondent’s lack of proper accommodation. The applicant indicates that the last incident of discrimination was August 26, 2009, that being the date she resigned from her employment.

3On April 11, 2011, the Tribunal Registrar issued a Notice of Intent to Dismiss (“Notice”) which noted that, pursuant to section 34 of the Code, the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

4On May 11, 2011, the applicant filed written submissions along with an affidavit sworn by the applicant. The applicant submits that she was subjected to a series of discriminatory acts and any delay in filing her Application was incurred in good faith. The applicant alleges that she suffered from significant mental health difficulties which precluded her from taking steps to file her Application. In addition, the applicant alleges that individuals she was relying upon for legal support also experienced health problems which further delayed the filing of her Application.

5On May 17, 2011, the Tribunal issued a Case Assessment Direction ordering a teleconference hearing regarding the issue of delay. The Tribunal convened a conference call on December 6, 2011, to hear the parties’ submissions with respect to the issue of the timeliness of the Application. Counsel for the applicant and counsel for the respondent participated on the call. The parties filed written submissions and documentary evidence prior to the teleconference hearing.

DECISION

6For the reasons that follow, I find that the Tribunal does not have jurisdiction over the Application because the allegations relate to events that occurred beyond the one-year limit and the delay was not incurred in good faith.

ANALYSIS

7Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident or the last series of incidents of alleged discrimination. Section 34 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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

8In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or the last incident in a series of incidents of alleged discrimination. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.

9The initial onus rests on the applicant to show that any delay in filing her Application was incurred in good faith: Klein v. Toronto Zionist Council, 2009 HRTO 241. As noted by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, to establish the delay was “incurred in good faith”, the applicant must show something more than simply an absence of bad faith. The applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

10If the applicant is able to establish good faith, the onus shifts to the respondent to demonstrate that it will suffer substantial prejudice as a result of the delay in filing the Application. In assessing substantial prejudice, some factors that a Tribunal may consider include the length of the delay and the impact of the delay on the party’s ability to make full answer and defence, such as the availability of witnesses and documents and the ability to investigate and retrieve evidence: AlSaigh v. University of Ottawa, 2012 HRTO 2.

11Given that both criteria of good faith and lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice if an applicant has failed to pass the good faith test: Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Therefore, notwithstanding the absence of substantial prejudice, the Tribunal has no power to relieve against the one-year time limit and does not have jurisdiction to determine an application in situations where the Tribunal is not satisfied that the delay was incurred in good faith.

When was the last alleged incident of discrimination?

12Initially, there was some dispute amongst the parties as to what constituted the last alleged incident of discrimination. As noted above, the applicant claims that for almost a decade she was the target of various forms of harassment, discrimination and reprisal. The applicant contends the events constitute a series of discriminatory incidents culminating in her resignation on August 26, 2009. The respondent disagrees with the claim that the alleged occurrences are a series of incidents and argues that the Code’s one-year timeline is triggered from either April 27, 2007, that being the last time the applicant worked, or June 2, 2008, when the applicant was scheduled to return to work but refused due to alleged accommodation concerns.

13During the conference call, counsel for the respondent submitted that the respondent was prepared to accept, strictly for the purposes of the preliminary hearing, that the resignation of the applicant’s employment on August 26, 2009, was the last alleged incident of discrimination. As such, the parties focused their oral submissions regarding the timeliness of the Application using August 26, 2009, as the date of the last alleged incident of discrimination.

14I note that the applicant’s narrative states the conflict she experienced at work commenced in 1998 and the narrative includes allegations of harassment, discrimination and reprisal pertaining to events in 2003, 2006 and 2007. I have concerns regarding the timeliness of many of the applicant’s allegations given that they are clearly outside the one-year period as set out in section 34(1) of the Code. I question whether the events can constitute a series of incidents given the allegations pertain to different incidents by different alleged perpetrators and the existence of temporal gaps in the chronology of the events: see for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442. I further question whether the discrimination was ongoing in August 2009, given that the applicant ceased employment in April 2007 and did not return to work in June 2008. The Tribunal has stated that an ongoing inability to return to work will not generally constitute ongoing discrimination: see for example, Prescod v. National Steel Car Limited, 2011 HRTO 2244, and N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282. Nevertheless, in view of the parties’ agreement, I will use the August 26, 2009, as the date of the last incident of discrimination for the purposes of my analysis.

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

15The Application was filed on March 21, 2011, approximately 19 months after August 26, 2009, that being (for the purpose of determining the preliminary issue) the last alleged incident of discrimination, and approximately seven months beyond the one-year limitation period provided for in section 34 of the Code.

Was the delay incurred in good faith?

16In 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, supra; Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110; and Doyle v. Canarm, 2009 HRTO 674.

17The applicant argues that she was unable to file her Application in time because of a number of difficulties associated with her mental health and financial circumstances. The applicant indicates that she suffered from serious anxiety and depression and experienced zombie-like side-effects of medication. The applicant indicates that, upon receipt of a financial settlement, she was eventually able to retain human rights counsel; however, as a result of her mental health problems, she was unable to provide a background and chronology of her allegations for this counsel. Consequently, her counsel retained a technical writer to assemble the necessary background information based on a review of the applicant’s documentation. The applicant indicates that the filing of her Application was further delayed because both the technical writer and her counsel were sick in the summer and winter of 2010 and then counsel was again unable to work in February 2011 due to a back injury.

18The applicant submits that as a result of her compromised mental health, financial problems and the illnesses experienced by her legal team, she was unable to file her Application until March 2011. The applicant submits the seven-month delay was incurred in good faith.

a. Financial Difficulties

19In support of her position that the delay was incurred in good faith, the applicant contends that she experienced financial problems which made it difficult for her to file her Application within the one-year deadline. The applicant’s written submissions indicate that it was “[i]n June 2009, after receiving a financial settlement in a claim for disability benefits, Ms. Moro was, financially, in a position to instruct counsel.”

20I find that the applicant’s general assertion that she experienced financial difficulty is not sufficient to establish a reasonable explanation for her failure to file the Application within the limitation period. Many applicants, particularly those whose employment has been terminated in circumstances they perceive implicate their human rights, experience financial hardship and are unable to secure legal representation. However, all applicants, notwithstanding financial circumstances and the absence of legal support, are subject to the same statutory one-year limitation period and must act diligently to ensure their application is filed in a timely manner.

21The fact that an applicant has inadequate funds to retain legal counsel for assistance in the human rights process has not, on its own, been considered as a factor evidencing good faith. The Tribunal process does not require parties to have legal representation and often parties are self-represented. A lack of legal representation due to difficult financial circumstances without more, for example some link to a Code-related factor, does not constitute a good faith reason for delay: see, N.M. v. Ottawa-Carleton District School Board, supra. While the absence of legal advice may, depending on the particular circumstances of the case, go to explain the content of an application, the lack of legal counsel alone, without other extenuating circumstances, does not mitigate delay.

22In light of the foregoing principles, I cannot accept that the applicant’s financial difficulties or lack of legal representation engendered a delay incurred in good faith. The applicant has failed to establish that her circumstances were to such an extent and degree that she was prevented from filing a timely Application.

b. Mental Difficulties

23In support of the argument that the delay was caused, in part, by her mental health difficulties, the applicant provided a copy a form entitled “Attending Physician’s Statement of Disability”. The document is a fill-in-the-blank form consisting of 10 questions and was completed as part of the applicant’s application for long-term disability benefits under the Ontario Teacher’s Insurance Plan. The form, dated June 18, 2007, was filled out by hand by a psychiatrist and notes that the applicant was twice seen by the psychiatrist. The form indicates that the applicant was experiencing a variety of mental health conditions, including depression, anxiety, panic attacks, adult attention deficient disorder and post-traumatic stress disorder. The form further notes that the applicant was having difficulty with concentration, was distracted and overwhelmed.

24The applicant bears the onus of establishing that her disability directly impacted her ability to comply with the limitation period. The Tribunal has held that it requires medical evidence that the disability was so debilitating so as to prevent an applicant from pursuing her legal rights under the Code: see for example, Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, supra; and Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

25While the Attending Physician’s form establishes that the applicant was experiencing serious mental health issues in June 2007, the form pre-dates the relevant period of time. The applicant has not submitted any medical documentation for the duration of time from her resignation in August 2009 to the filing of the Application in March 2011. In my view, the Attending Physician’s form does not establish a link between the applicant’s disability that existed in June 2007 and the seven-month delay in filing the Application that followed August 2010.

26Moreover, the applicant’s narrative and the parties’ submissions reveal that the applicant was, in fact, able to pursue her rights (including concerns that are now raised in the Application) from 2007 and onwards. The materials indicate that from 2007 to 2010 the applicant was personally and directly engaged, as well as indirectly involved through her counsel and agents, in various fora attempting to seek her legal entitlements and establish her legal claims.

27The applicant’s narrative and submissions note that sometime following the firecracker incident in April 2007, the applicant filed a complaint with the London Police Service leading to an investigation. In August 2007, the applicant filed a harassment complaint with the respondent school board against nine individuals and this process was on-going in 2008. The applicant’s narrative notes that the applicant also filed complaints with the Ministry of Labour regarding Occupational Health and Safety concerns, which involved an investigation in October 2008 and a subsequent report. In 2008, the applicant filed a Workplace Safety and Insurance Board (“WSIB”) claim regarding the firecracker incident and work-related disability benefits and the narrative states that the WSIB case was on-going in 2009. The applicant’s materials also indicate that she was pursuing a claim with her insurer and that she was involved in a financial settlement in June 2009, allowing her to later retain human rights counsel.

28The respondent submits that the applicant was involved in several processes in seeking legal redress regarding her concerns. The respondent indicates that, contrary to the applicant’s claim that she was mentally unable to assist counsel to prepare a summary of her human rights complaint, the documentary evidence indicates that in 2007 and 2008, respectively, the applicant was vigorously pursuing her rights. In August 2007, the applicant prepared and filed extensive materials in a well-organized binder with detailed particulars for a harassment complaint against the nine individuals. This complaint was investigated by an independent investigator and the results of the investigation were ultimately put before school board Trustees in August 2008. The applicant actively participated, along with her agents, in the August 2008 hearing before the Trustees.

29The respondent points out the binder materials filed as part of the applicant’s harassment complaint in 2007 were similar to the materials submitted for the Trustee hearing in 2008 and mirror the concerns raised in the Application in 2011.

30The respondent submits that the applicant, dissatisfied with findings of the independent investigator and the board’s handling of the matter, subsequently filed a complaint with the Ministry of Education. In addition, the respondent suggests that, although the applicant was supported by her union during the internal investigation, the applicant also subsequently pursued a duty of fair representation complaint against her union.

31The respondent further indicates that the applicant, through counsel, brought legal proceedings against the Ontario Teacher’s Insurance Plan, which settled in August 2010. The respondent notes that the applicant had a separate lawyer with respect to her insurance claim from October 2008 until 2010 and that she also retained an agent in January 2009 to assist with respect to employment-related matters. The respondent points out that the applicant was able to instruct her lawyer and the agent throughout this period of time.

32I have reviewed the applicant’s binder consisting of nine complaints that she prepared for the school board investigation. It is clear from the face of the materials that the binder comprehensively documented the applicant’s harassment concerns and that, by August 2007, the applicant had expressly asserted how, when and by whom her rights had been allegedly violated. Along with the detailed compilation of her allegations in relation to each individual, the applicant also prepared a synopsis of her concerns with respect to each individual. The applicant does not deny that these materials were available to her human rights counsel. I find that the documentary materials belie the applicant’s claim that she was unable to assist counsel to obtain a cogent understanding of her claim. Even if I were to accept that the applicant experienced compromised mental health in 2009-2010 (a proposition which is not supported by medical evidence), a chronology of the alleged harassment already existed providing substantial details of the applicant’s complaint.

33I also find that the applicant pursued a variety of processes during the period of time she claims she was too incapacitated to seek human rights recourse. In sum, based on the parties’ submissions, it appears from 2007 to 2010 the applicant was engaged with or involved in the following processes: a criminal investigation, a school board investigation, a Ministry of Labour investigation, a Trustee hearing, a WSIB claim, a complaint to the Ministry of Education, a duty of fair representation complaint and a long-term disability claim. Although the applicant did not explicitly take this position, I note the Tribunal has repeatedly held that participating in other legal proceedings will generally not constitute a valid explanation for delay in filing an application: see for example, Cartier, supra, and Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578.

c. Health Problems of Applicant’s Legal Support

34The applicant has also alleged that the delay in filing the Application can be explained by the illness of her legal team. In her affidavit, the applicant deposes that, in addition to the fact that she was experiencing crippling anxiety and depression, her counsel and the technical writer who was retained to prepare her complaint also experienced health concerns. In her affidavit, the applicant states the technical writer experienced various health problems in July and August 2010. The applicant further states that her counsel experienced “some fatigue and illness problems (a recurring flu) in the summer and late winter of 2010” and suffered a back injury rendering him bedridden in February 2011.

35The applicant deposes that had counsel “not been so under the weather in the middle and end of August, 2010, he would have been able to realize the pending deadline and so address the problems arising out of the [technical writer]’s illness.” The applicant asserts that she should not be penalized for the delay incurred as a result of the ill health of her legal support.

36I note that I had difficulty in identifying the precise time that the applicant retained human rights counsel. In the applicant’s written submissions, there was some suggestion that the applicant could not instruct counsel in July 2009. In her affidavit, there was some suggestion that the applicant met with counsel in June 2010. In oral submissions, counsel referenced that he was retained in September 2009. In any event, based on the applicant’s submissions, it appears the Code’s one-year timeline may already have elapsed once the applicant’s legal team began to work on the applicant’s case.

37Even if I were to accept that the applicant’s reliance on her legal team’s services was indicia of good faith, it is unclear why the Application was not filed in the fall of 2010. The applicant notes that the technical writer “ran into health problems in July and August 2010”. The applicant’s chronology of the counsel’s ill health is clear that the recurring flu occurred in “the summer and late winter of 2010”. Presumably, based on this information, counsel and the technical writer were healthy in the fall of 2010. The applicant has provided no explanation for her failure to file an application in September and October 2010.

Summary

38The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. The Code requires an individual to act with all due diligence and file an application within one year of the last alleged incident of discrimination.

39In summary, I find that the applicant’s financial difficulties do not constitute a good faith reason for the delay in filing the Application. Further, the only medical evidence the applicant put before this Tribunal was related to her application for insurance benefits and that form was dated June 2007. As such, the applicant has failed to provide medical evidence regarding the relevant period of time to substantiate her claim that she was prevented as a result of her mental health from bringing forward a timely application. Finally, the applicant has failed to explain why an application was not filed by her legal team in the fall of 2010. In conclusion, I am not persuaded that the delay in bringing this Application was incurred in good faith

CONCLUSION

40For all of the above-noted 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. Given the absence of evidence that the delay was incurred in good faith, it is not necessary to address the issue of prejudice. The Tribunal is without the jurisdiction to deal with this Application.

41Accordingly, the Application is dismissed.