Gordon v. The Manufacturers Life Insurance Company, 2012 HRTO 476

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barry Gordon

Applicant

-and-

The Manufacturers Life Insurance Company

Respondent

DECISION

Adjudicator: Alison Renton

Date: March 7, 2012

Citation: 2012 HRTO 476

Indexed as: Gordon v. The Manufacturers Life Insurance Company

APPEARANCES

Barry Gordon, Applicant ) Self-represented )

The Manufacturers Life Insurance )

Company, Respondent ) Mary MacKenzie, Counsel

1The applicant filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 8, 2010. Initially the applicant alleged discrimination on the basis of disability and age with respect to employment, goods, services and facilities. However, after filing, but before the Application was sent to the respondent, he advised the Tribunal that he was not pursuing the ground of employment. He identified October 15, 2008, as being the date of the last event upon which the Application is based and identifies Daniel Rabinovice, case manager, as being the contact for the respondent.

2The respondent filed a Response with the Tribunal. The respondent requests that the Tribunal dismiss the Application due to delay, lack of jurisdiction and because the Application fails to disclose a prima facie violation of the Code. The respondent also requests that the Application be deferred because the applicant had filed grievances and a complaint before the Canadian Human Rights Commission (“CHRC”).

3In the applicant’s Reply, he stated that the grievances and the CHRC complaint have nothing to do with the issues raised in his Application and that the respondent acted as an agent of his employer, Canada Post.

4The Tribunal issued a Case Assessment Direction (“CAD”) dated August 9, 2011, in which it directed that a conference call hearing be scheduled to address the issues of delay, jurisdiction and deferral. The CAD also directed the parties to file any case law and documentation upon which they intend to rely no later than 10 business days before the conference call hearing. Para. 6 of the CAD stated:

As the applicant has placed his medical condition at issue with respect to the delay issue, the Tribunal expects that he will be filing medical documentation in support of his position that he was medically incapable of filing his Application within the one year limitation period required by section 34(1).

5A Notice of Case Management Conference Call dated August 31, 2011, was issued to the parties and scheduling the conference call hearing for October 18, 2011. Prior to the hearing, the applicant filed additional material, but the respondent did not. Despite being directed to do so in the CAD, the applicant did not file any medical documentation.

6The conference call hearing was held on October 18, 2011, and both parties participated. During the hearing, the applicant advised that he had correspondence from the respondent’s representatives from May and June 2009 upon which he wanted to rely. Despite the parties being required to file additional material in advance of the hearing, the Tribunal permitted the applicant to file this documentation after the hearing, and provided the respondent an opportunity to respond to the applicant’s post-hearing material, which it did. The applicant then provided further medical documentation. The post-hearing material, the submissions made by the parties during the hearing, the pleadings and other communications from the parties has been considered by the Tribunal as set out below.

The Applicant’s Position

7The applicant submits, in his Application and during the hearing, that while working at Canada Post, he experienced medical issues which required him to have surgery and be off work in the fall of 2007. Mr. Rabinovice, a representative of the respondent, which was the insurance company used by Canada Post, sent the applicant a number of “nasty” letters stating, amongst other things, that he was able to work a full shift despite medical documentation opining that he could not and requesting the applicant’s consent to directly contact his doctors. As well, the applicant submits, Mr. Rabinovice did not know the difference between different types of doctors, and he asked questions that the doctors had already answered. Obtaining additional medical information cost the applicant time and money.

8In October 2008, Mr. Rabinovice notified Canada Post that the applicant was ready to work a full 8-hour shift, which the applicant asserts was premature and contrary to his doctor’s recommendations. The applicant returned to work. The applicant alleges that the respondent failed to take his health concerns seriously and it did not believe his doctors. As he was approaching his “middle sixties”, this treatment was not fair. He states, “I felt I was discriminated against and railroaded to early retirement due to the harassment”. He retired in July 2009.

9During the hearing, he added that he was harassed by different representatives at the respondent up to three days before he retired. The harassment consisted of receiving correspondence from these different representatives of the respondent dated May and June 2009 pertaining to medical issues that arose following his return to work in October 2008 in relation to his 2007 surgery. Subsequent to the hearing, he provided copies of the correspondence: one dated May 22, 2009, from Ken Kilian, a case manager with the respondent, and the other dated June 26, 2009, from Tanya Vaz, a case manager with the respondent, both pertaining to recent absences from work, enclosing an “Acquisition of Medical Information” form and requesting that it be completed by his physician. The applicant told the Tribunal that he wanted to rely upon this correspondence as part of the allegations in his Application. He could not remember why they were not included in his Application. He noted that he referenced the May and June 2009 correspondence in his Reply.

10On his Application, the applicant identified October 15, 2008, as being “the date of the last event”. In response to the question, “If you are applying more than one year from the last event, please explain why”, the applicant wrote:

I was still working and under doctors care. I had to wait for complete clearance from my doctor before I could file any reports. I contacted the Canadian Human Rights Commission first and waited for their forms. It took four weeks to receive the forms…. It took me another four weeks to get in touch with another person to inform me that I had to file with the Government of Ontario for a claim against Manulife Financial. Contacted the Human Rights Legal Support Centre in June 2010 and spoke to Jennie on June 16 requesting assistance in completing this form. I tried to call on several occasions, left messages and visited the office and saw Maureen on the 6^th of July. She said she would contact me and I had also mentioned I had vacation plans and wanted to get this done asap. On the 7^th of July, the office called and wanted me to make an appointment on the 16^th of July saying that I still had time as my official retirement date was July 25, 2009. Because I had scheduled vacation time, I would not be in town at the deadline date and therefore took it on myself to complete the documentation.

11The applicant relies upon these same explanations in support of his position that any delay in filing his Application was made in good faith. During the hearing he also submitted that he waited until he retired to file his Application. His union, the applicant stated, did file some grievances pertaining to his employer and the respondent before his retirement. After his retirement he followed up with the union but was told because of his retirement his grievances were “cancelled”.

12The applicant seeks $100,000 as a financial remedy and asserts “[b]ecause of this harassment, I was forced to leave work two years before I had reached my 25^th year of pension. I literally could not take it anymore and it was affecting my family life”. The applicant confirmed that during periods that he was off work for medical reasons, Canada Post continued to pay his salary, not the respondent. He “never received a penny” from the respondent, he submitted.

The Respondent’s Position

13In its Response and during the hearing, the respondent submitted that the Application should be dismissed against it. It was not the applicant’s employer, but rather had a disability management program agreement with Canada Post, the applicant’s employer, whereby the respondent agreed to provide specified occupational health care and vocational rehabilitation services to eligible employees of Canada Post. Salary continuation payments were made directly by Canada Post and not from the respondent.

14The respondent submits that in addition to not being the applicant’s employer, the allegations against it are out of time and beyond the mandatory one-year limitation period established by section 34(1) of the Code. The fact that the applicant waited until after his retirement to pursue his Application does not amount to good faith as required by section 34(2) of the Code. Further, the respondent is prejudiced in its ability to respond to the allegations as Mr. Rabinovice is no longer employed by the respondent. The applicant filed an application with the CHRC and filed union grievances with his union, CUPW, arising from the same or substantially the same facts as those in the Application. The allegations themselves do not establish a contravention of the Code as they show that the respondent, including Mr. Rabinovice, was doing the job that an insurer is supposed to do – request and obtain medical documentation. Finally, the allegations from 2009 were not part of the Application and do not demonstrate that there was any violation of the Code as they are introductory letters that pertain to different claims than the one resulting in his return to work in October 2008. The respondent objects to the applicant being permitted to expand upon his allegations at this point.

Analysis

Delay

15Section 34(1) 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.

16In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

17In the circumstances of this case, I find that the Application was not filed within the mandatory one- year limitation period and that the applicant has not established that the delay was incurred in good faith. Accordingly, it must be dismissed.

18The allegations in the Application, which are set out in response to question 8 “What Happened”, consist of two paragraphs which are less than half a page in length. The allegations are specific to Mr. Rabinovice, the letters that he sent to the applicant, the questions that he asked the applicant, and the applicant’s communications with him. The applicant identifies Mr. Rabinovice as the contact person for the respondent. The conduct, the applicant alleges in his Application, “continued until mid October 2008 when Daniel notified my employer that I was fit to work an 8 hour shift….”. The applicant, in response to question 7 “What was the date of the last event?” identifies on the Application the date of the last event it as being “15/10/2008” and then sets out information as to why he filed more than a year from the last event.

19It is true that the applicant states in his Reply that he received correspondence from different people with the respondent in May and June 2009 and that his retirement date was July 25, 2009; however it appears that he did this to correct the respondent’s assertion in its Response that its last contact with the applicant was in November 2008 and not as separate allegations in and of themselves. I also acknowledge that the applicant, in providing an explanation for the monetary remedy he is seeking states, “Because of this harassment, I was forced to leave work two years before I reached my 25^th year of pension…”. However, in my view and because of the applicant’s specific allegations, the Application is about the applicant’s involvement with the respondent up to October 2008, when he returned to work, and not to the date of his retirement. Accordingly, the applicant had one year from October 2008 to file his Application. Instead, his Application was filed approximately nine months after the mandatory one- year limitation period.

20Even if I were to permit the applicant to amend his Application, which is essentially what the applicant is seeking to do by including the 2009 allegations now in 2012, I note that the May and June 2009 letters from the respondent relate to a different absence from work and are from different representatives than Mr. Rabinovice. The mere fact that the applicant received further correspondence from the respondent in May and June 2009 from different representatives and about different issues does not establish a violation of the Code and in any event is not part of a series of events which pertain to those allegations against Mr. Rabinovice.

21The applicant alleges as part of his good faith claim that he could not pursue his allegations against the respondent until he received “complete clearance” by his doctors. The Tribunal, in para. 6 of the CAD, stated that it expected the applicant to file medical documentation in support of this position. However, the applicant has not provided any medical documentation to substantiate this assertion.

22While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Forde v. Avon Maitland District School Board, 2011 HRTO 1664, and the cases cited therein at para. 39.

23Despite the direction in the CAD, the applicant did not submit any medical documentation prior to the hearing. The medical documentation that the applicant submitted after the hearing does not support his assertion that he was medically incapacitated from pursing his Application. One medical report is from 2007, which pre-dates the October 2008 date upon which the applicant relies as his last date, and is not relevant to the issue of delay. Another medical report is from October 2008, which says, “Patient will try to work eight hours a day only. If problems, he will be reassessed”, and suggests that the applicant was in a position to attempt to return to work. It provides no basis to conclude that he was unable to file his Application. The third medical document, dated March 2009, is a Doppler study about veins in the applicant’s left leg. None of these assert or even suggest that because his medical condition the applicant was medically incapacitated from pursuing his human rights issues.

24The applicant also submits that the delay in filing his Application was because he contacted the CHRC, which told him that his allegations against the respondent were not within its jurisdiction because the respondent is provincially-regulated. From the material that he submitted to the Tribunal in support of this position, it appears that the applicant contacted the CHRC in or around December 2009, again outside of the mandatory one-year limitation period under section 34(1) of the Code. Further, the information that he received from the CHRC about the respondent being provincially-regulated is contained in a letter dated March 18, 2010 – again outside the Code’s one-year limitation period. The applicant has not provided any explanation about the delay of several months from the end of the one-year limitation period to his contact with the CHRC or any information to explain the delay from March 2010 to June 2010 when he contacted the Centre. In any event, the fact that the applicant was waiting for an outcome in other venue is not generally a good faith reason for delay. See Kerry v. City of Ottawa, 2011 HRTO 1940. It was open to the applicant to file an application with the Tribunal while he was canvassing jurisdictional issues with the CHRC.

25The applicant submits that he sought legal assistance from the Human Rights Legal Support Centre in June 2010, by which time, for the reasons set out above, any claim was already outside the Code’s one year limitation period. The applicant has not provided any explanation as to why he was unable to contact the Centre within the mandatory one-year limitation period and the applicant does not provide any specifics as to what he told the Centre about his allegations against the respondent. It appears that he did tell the Centre about his retirement date of July 25, 2009. Following his contacts with the Centre in June and July 2010 he filed a complaint, dated July 6, 2010, with the CHRC naming Canada Post as a respondent and in which he alleged that Canada Post failed to accommodate his disability and “as a result of the alleged discrimination, he was forced to retire in July 2009” and he filed his Application on July 8, 2010.

26An applicant cannot make what would otherwise be an untimely Application timely by simply tacking on allegations that occurred after the fact. See Malcolm v. Centre for Addiction and Mental Health, 2011 HRTO 1848. It is now more than two years from when Ms. Vas and Mr. Kilian sent their communications to the applicant.

27Many applicants who file Applications with the Tribunal are self-represented and the fact that an applicant did or did not have counsel is usually not material to a determination of good faith. See N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282, at para. 23.

28I find that the applicant has not established that the delay in filing his Application was incurred in good faith and accordingly his Application is dismissed on that basis.

Application is not within Tribunal’s Jurisdiction

29Alternatively, I have also determined that the Application cannot proceed because the respondent, in the specific circumstances of this case, is not provincially-regulated and the Tribunal does not have the jurisdiction to hear the Application.

30While it was unclear from the materials filed by the parties, it was clear during the hearing that Canada Post was self-insured with respect to the provision of disability benefits. The applicant stated that he never received any money from the respondent and that all monies he received when he was absent for medical reasons were paid by Canada Post. The respondent submitted that while it is a provincially-regulated company, the applicant’s employer was federally-regulated. An employee who missed work for medical reasons received salary continuation from Canada Post; no monies were paid to an employee from the respondent.

31In Phipps v. Canada Post Corporation, 2010 HRTO 2178, the Tribunal considered an Application from a Canada Post employee in Ontario, and made the following finding at para. 3:

The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. Section 23 of the Canada Post Corporation Act states that the respondent is an agent of Her Majesty in right of Canada, and section 5 defines its objects so as to make clear its business is national and international in character. Pursuant to section 91, paragraph 5 of the Constitution Act, 1867, “postal service” is a federal undertaking. Allegations of human rights violations against this particular respondent should therefore be raised under the Canadian Human Rights Act and not the Code which governs provincial matters.

32It is true that the applicant received a letter dated March 18, 2010, from an Early Resolution Analyst at the CHRC which said “Please note that Manulife is a provincially regulated organization, and therefore a complaint against Manulife would not be within the jurisdiction of the Commission”. However, the applicant did not provide to the Tribunal a copy of the allegations or information that he provided to the CHRC upon which this statement was made, apart from three standard form pages, two of which requested contact information, and one which was a declarations page.

33Irrespective of the March 18, 2010 statement, the Tribunal has dismissed an application against an insurance company when it only administers a federally-regulated company’s self-insured disability plan and when the federally-regulated company retains all liability and responsibility for paying the disability benefits to individuals under the plan. See Wint v. First Canada ULC, 2011 HRTO 1524. In this case, the respondent only administers Canada Post’s self-insured disability plan. The respondent does not and has no responsibility for paying the disability benefits to individuals under the plan – those are retained by Canada Post.

34Accordingly, the Tribunal does not have the jurisdiction over this Application. In light of these determinations, I do not need to address the other issues that were discussed during the hearing.