HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert William Patterson
Applicant
-and-
The Corporation of the City of Mississauga, Ken Owen, Raj Sheth, John Crewe, Debbie Rivers, Diana Belaisis, and Bob Johnston
Respondents
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Patterson v. Mississauga (City)
APPEARANCES
Robert William Patterson, Applicant ) Brenda Culbert, Counsel
The Corporation of the City of Mississauga, ) Ken Owen, Raj Sheth, John Crewe, Debbie Rivers, ) Diana Belaisis, and Bob Johnston, ) Melissa McGugan, Respondents ) Counsel
Background
1The applicant filed this Application on April 27, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the grounds of colour, age, and reprisal or threat of reprisal. The applicant alleges that during the course of his employment he was disrespected, subjected to bullying, and was not offered an early retirement package as provided to other long term employees. The last alleged incident in the Application took place on April 30, 2009 when the applicant alleges that he was “Forced to Retire For Personal Reasons”. Prior to that, the applicant alleges that, on April 3, 2009, he was told that he would not receive a salary increase.
2A Response was filed by the respondents on October 13, 2010. Along with the Response the respondents also filed a Request for an Order During Proceedings (”RFOP”). The respondents requested that, among other things, the Application be dismissed due to the allegations being beyond the Code’s one year limitation period and that any action that the applicant has for the late filing of his Application is a negligence one against the lawyer who gave him incorrect advice.
3On February 24, 2011, the Tribunal sent a Case Assessment Direction (“CAD”) to the parties directing the applicant to make submissions regarding the delay issue. The CAD noted:
This Application was filed on April 27, 2010. The applicant appears to base his assertion that the Application falls within the one-year time limit in s. 34 of the Code on the argument that his retirement took effect on April 30, 2009.
In Degen v. Toronto (City), 2011 HRTO 319 the Tribunal dealt with a similar argument and found that the date an individual’s allegedly “forced” retirement took effect was not an “incident” of discrimination within the meaning of s. 34 of the Code.
4In his response to the CAD (dated March 10, 2011), the applicant stated:
In response to your comments in your Case Assessment Direction that it was my understanding that I must submit my Application by April 30, 2010 to adhere to the one year time limit as outlined in the Code is correct. I came to this understanding from the direction I received during a meeting on May 11, 2009 with…the Human Rights Legal Support Centre. During this meeting I communicated the timelines and details of my complaint and was told (as confirmed in her attached letter dated June 8, 2009) that based on my retirement date of April 30, 2009 my limitation period would run out on April 30, 2010. With this timeline being critical to ensure that my complaint was accepted, I made a dedicated effort to file my application on April 27, 2010.
5In support of his submission that his Application is timely, the applicant attached a letter, dated June 8, 2009, from the Human Rights Legal Support Centre (“HRLSC”), which included the following paragraph:
One final note: there is a one year limitation period to bring an application to the Human Rights Tribunal of Ontario. Based on the retirement date you provided me – April 30, 2009 – your limitation period will run out on April 30, 2010.
6Given the applicant’s submissions, the Tribunal determined that it was appropriate to receive further evidence and oral submissions with respect to whether some or all of the Application is outside of the Tribunal’s jurisdiction because the alleged incidents occurred beyond the Code’s one-year limitation period. As such, I directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, as outside the jurisdiction of the Tribunal on the basis of delay. The HRLSC was also given notice of the hearing.
7A preliminary hearing was held before me on January 12, 2012. The applicant participated in the hearing and was represented by counsel from the HRLSC. The respondent employer also participated and made oral submissions.
ANALYSIS
Applicable Legislation
8Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
- (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.
When was the “last incident”?
9The applicant gave testimony at the hearing. I asked him to clarify his statement in the Application:
Once I got over the shock that I was not going to receive the City approved Cost of Living Increase, I realized that based on what I had experienced to April 3, 2009 that I was not offered with an Earlier Retirement Package (given to some of my colleagues) my situation was not going to improve. Unfortunately, I concluded that if I continued to work in this hostile environment, the final results would have a serious impact on my health, mental state of mind and family life. With this in mind, I had no choice but to take early retirement effective April 30, 2009, and submit my application to the Human Rights Commission.
10The applicant confirmed that it was entirely his decision to retire on April 30, 2009. In other words, the retirement date was not in any way imposed upon him by the respondents.
11Given the applicant’s Application and testimony, I find that the date of the applicant’s retirement is not an “incident” of alleged discrimination. On that date, the applicant’s prior decision to retire took effect. This is consistent with the decision in Degan, above, and also Lechet v. Casey House, 2011 HRTO 620 (“Lechet”).
12During the hearing, there was a suggestion from the applicant that the legal differentiation between what constituted an “incident” of discrimination and an event which flowed from an alleged Code breach was not established in Ontario when the applicant received advice from the HRLSC in 2009. The idea was that this might have some bearing on my consideration of s. 34(2). I reject that suggestion on the basis that the decisions in Degan and Lechet followed the rationale in Mafinezam v. University of Toronto, 2010 HRTO 1495, which in turn followed the Ontario Divisional Court’s 2008 decision in Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993, 236 O.A.C. 115 (ON S.C.D.C.).
13Furthermore, the Tribunal has decided that the fact that an applicant misconstrues the last incident of alleged discrimination is not a reasonable explanation for delay. See Ferrari v. Chrysler Canada Inc., 2009 HRTO 227.
14I find that the last alleged “incident” pursuant to s. 34(1) occurred on April 3, 2009. The Application was therefore filed 24 days beyond the statutory deadline.
Was the delay incurred in good faith?
15The courts have repeatedly stated that the provisions of the Code must be given an expansive, liberal and purposive interpretation. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 33; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. at para. 44; and Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 114 at para. 1134. See also the recent Tribunal decision in Contini v. Rainbow District School Board, 2011 HRTO 1340.
16Nevertheless, the Tribunal has set a high onus on applicants in attempting to demonstrate that the filing delay was incurred in good faith. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241 and Pelletier v. Nortrax Canada, 2011 HRTO 1968. The Tribunal has repeatedly expressed the view that the mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously.
17However, legitimate circumstances will establish good faith that justifies exercising the discretion under s. 34(2). For example, in Lutz v. Toronto (City), 2010 HRTO 769, the applicant established that his delay in filing the Application was due to his disability, and that any other legal proceedings he had been involved in during the period were undertaken on his behalf by his wife. Similarly, in Kelly v. CultureLink Settlement Services, 2010 HRTO 977, the Tribunal found that the applicant's disability had a clear effect on his ability to undertake legal proceedings and hence that the delay was incurred in good faith.
18In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith. See Reid v. March of Dimes, 2009 HRTO 2207. An 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. See Colbeck v. Pinecrest-Queensway Community Health Centre, 2010 HRTO 1453.
19A reasonable explanation must substantiate that the applicant acted with all due diligence. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier, above.
20The Tribunal has indicated that failure to act in ignorance of one’s rights may, in some circumstances, amount to good faith. However, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights. See, Lutz v. Toronto (City), 2009 HRTO 1137; Simon v. Peel Regional Police Services, 2010 HRTO 433; Cort v. Suncor, 2010 HRTO 853; Waithe v. Brofort, 2010 HRTO 1254; Vaya v. Apache Burgers;, 2010 HRTO 1289; Alliman v. Dew Engineering and Development, 2010 HRTO 1651; Spar v. Marathon Roofing Supplies, 2011 HRTO 688; and N. M. v. Ottawa Carleton District School Board, 2012 HRTO 282.
21In 2011 the Tribunal dealt with four cases where the applicant argued that reliance on a lawyer’s advice established “good faith” pursuant to s. 34(2). In Biega v. Management Research & Solutions, 2011 HRTO 13, (reconsideration denied, 2012 HRTO 181), the applicant retained a lawyer even before the last incident of discrimination in January 2008. Subsequently he launched a civil proceeding for wrongful dismissal. After filing an Application in December 2009 the applicant argued that the delay was incurred in good faith because he had no knowledge of anti-discrimination legislation until his lawyer mentioned it to him in September of 2009. In rejecting the applicant’s argument the Tribunal stated:
…the applicant had counsel throughout the delay period. It is appropriate to infer from that fact that the applicant had access to relevant information about available legal options. I do not accept as credible the applicant’s claim that he did not have knowledge of the Code or of the possibility of legal remedies for discrimination until September 2009, nearly one year after he retained counsel.
22Subsequently in Krajisnik v. Linamar, 2011 HRTO 460, the Tribunal again rejected the applicant’s “good faith” argument:
The applicant was involved in multiple legal processes related to his employment with the respondent and had the benefit of legal counsel…. the witness statement provided by the applicant’s daughter suggests that the applicant was never informed of his Code rights during these legal processes….Even if lawyers involved in these specific legal processes did not explicitly inform the applicant of other rights he may have had under the Code I am not satisfied that this means the applicant could not have made enquiries and learned of these rights in a timely manner.
23Similarly, in Murray v. Craigwood Youth Services, 2011 HRTO 677, the applicant had consulted with and eventually retained legal counsel to address the termination of her employment. Her lawyer initiated an action for wrongful dismissal, with no indication that either the applicant or counsel turned their minds to possible remedies under the Code. After the civil action was dismissed the applicant filed an Application, some 22 months after the termination. In addressing the issue of good faith I stated the following:
Although it may be, as the applicant argues, that her legal counsel failed to inform her regarding her rights pursuant to the Code, that by itself does not constitute a satisfactory explanation for why she could not have filed her Application in a timely manner.
24Finally in McGhie v. Bell Canada, 2011 HRTO 1197, the last incident of alleged discrimination was the termination of the applicant’s employment in February 2009. The applicant was assisted by his union’s lawyer in filing a grievance under the collective agreement governing his workplace. The Application under the Code was filed on September 15, 2010. In a scenario very similar to Biega, above, the applicant argued that the Tribunal should allow the Application to proceed because his union lawyer only made him aware of his right to seek redress under the Code well after the one year limitation period had passed. In dismissing the Application I again applied the rationale in Lutz, above, reiterating that while ignorance of anti-discrimination legalisation may in some circumstances amount to good faith, the applicant had failed to establish that he had no reason to make inquiries about his rights under the Code.
25In contrast with the foregoing decisions, in my view, the applicant in the specific circumstances of the present case has demonstrated that the delay in filing was incurred in good faith. He has provided a reasonable explanation. His explanation is reasonable because it demonstrates that he acted with all due diligence. Soon after the last alleged incident of discrimination he turned his mind to addressing his rights under the Code. He made inquiries in that regard. He sought and obtained legal advice specifically with regard to the Code from the HRLSC. His actions are therefore clearly distinguishable from those of the applicants in Biega, Krijisnik, Murray, and McGhie, above. In those cases the applicants never turned their minds to the existence of anti-discrimination legislation until after the expiry of the Code’s limitation period.
26In the present case, the advice the applicant received from the HRLSC included the statutory deadline for filing an application. He acted in reliance on that advice. Rhetorically, what more could he have done? I find that, given the specific circumstances of this case, there was no reason whatsoever for the applicant to make further inquiries with regard to the provisions of the Code. In these circumstances, I cannot agree with the respondents’ suggestion that the applicant’s relief is necessarily through a negligence action against the HRLSC and not through an application under the Code.
Was there Prejudice?
27During the course of the hearing I asked the respondents to address the second element of the test in s. 34(2), i.e. whether any “substantial prejudice will result to any person affected by the delay”. The respondents were unable to provide any evidence of prejudice incurred as a result of the 24 day delay.
ORDER
28Having accepted that the applicant has provided a reasonable explanation for the delay, pursuant to the Code’s s. 34(2), the Application is within the jurisdiction of the Tribunal and the Application can continue.
29I am not seized of this matter.
Dated at Toronto, this 23rd day of March 2012.
”signed by”_____________
Alan G. Smith
Member