Murphy v. William W. Creighton Youth Services, 2012 HRTO 674

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Jay Murphy

Applicant

-and-

William W. Creighton Youth Services, Keith Zehr, Confederation College of Applied Arts and Technology, Canadian Union of Public Employees and the Workplace Safety and Insurance Board

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: April 2, 2012

Citation: 2012 HRTO 674

Indexed as: Murphy v. William W. Creighton Youth Services

APPEARANCES

Paul Murphy, Applicant ) Self Represented

William W. Creighton Youth Services and ) Keith Zehr, Respondents ) Robert Edwards, Counsel

Canadian Union of Public Employees, ) Respondent ) Dave Steele, Counsel

Confederation College of Applied Arts and ) Technology, Respondent ) Janine Nagy, Representative

Workplace Safety and Insurance Board, ) Respondent ) Gurjit Brar, Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") alleging that he experienced discrimination in respect of employment and goods, services and facilities on the basis of disability and that he faced reprisal or the threat of reprisal for seeking to enforce Code protected rights.

2Upon a review of the file, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In the Case Assessment Direction (CAD), dated October 27, 2011, the Tribunal also noted that it appeared that some of the allegations may be untimely and that there may be an issue as to delay in filing the Application.

3For the reasons that follow, this Application is dismissed.

NO REASONABLE PROSPECT OF SUCCESS

4During the conference call, the applicant confirmed that, in addition to the named respondents, he had intended to name the Ministry of Labour as a respondent. As the applicant had not provided an address for service or raised any issue when the Ministry was not identified as a party, the Application was not delivered to it.

5The applicant was asked to clarify the nature of the allegations of discrimination that he intended to pursue against the Ministry of Labour. The applicant intends to argue that the absence of anti-bullying legislation at the time he was in the workplace resulted in him not having the education and tools to deal with problems of bullying in the workplace.

6In my view there is no reasonable prospect that the applicant will succeed in establishing that this allegation amounts to a breach of the Code and there is no reason for the matter to proceed further as against the Ministry of Labour. A copy of this Decision will, however, be sent to counsel for the Ministry for their information.

DELAY

7Section 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.

8The Application was filed on September 13, 2011.

9According to his Application, the applicant has not been actively employed by his former employer, William W. Creighton Youth Services, since 2005. During the conference call he stated that he was terminated in July, 2007 and that he spoke with Keith Zehr, the Executive Director of the organization and also a personal respondent in this Application, in September, 2009 about returning to the organization and he sees the failure of the organization to have him return as an incident of discrimination. Even if I were to accept September, 2009 as the last in a series of incidents of discrimination, which I do not, the Application is still untimely as against the former employer and its Executive Director.

10Similarly, the applicant confirmed that any allegations of discrimination as against CUPE date back to August, 2006. As a result those are outside of the one year time frame outlined in the Code.

11Any allegations involving Confederation College would have to have occurred in 2008 as that appears to be the time when the applicant interacted with the College. Those allegations are also, therefore, untimely.

12The applicant indicates that the date of the incident of discrimination involving the WSIB occurred in 2008 when a decision was made to amalgamate or consolidate his claims. As such, this allegation is also untimely.

13The Tribunal will not deal with an Application filed more than one year after the incident, or a last incident in a series, unless it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

14In considering whether the delay was incurred in good faith, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

15On review of the material before me and having heard the submissions of the parties, I find that this Application may not proceed. The applicant has not provided a reasonable explanation for the delays in filing an Application against any of the respondents named above that leads to the conclusion that those delays were incurred in good faith.

16In his Application documents, the applicant indicates that the last in a series of incidents took place either in September, 2009 or "the present", without specifying the respondent to whom or which he refers. He states that the reason for any delay is "chronic depression due to bullying". During the teleconference he also made reference to an acquired brain injury as a reason for the delay.

17In essence, the applicant's argument is that the reason for delay was his disability. Although the CAD issued on October 27, 2011 indicated that all documents the parties intended to rely upon should be served and filed 14 days in advance of the conference call, the applicant had filed no documents that confirmed the existence of either of these medical conditions or their impact on him during the material time.

18As the Tribunal held in Dionne v. Toronto (City) 2011 HRTO 317, where the applicant attributed the delay in filing his Application to his medical condition:

While 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 disability was so debilitating to prevent an applicant from pursuing his or 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 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

19The applicant did not provide medical evidence in advance of the teleconference held on March 20, 2012, as required in the CAD. Following the close of the conference call hearing, on March 26, 2012, the applicant sent in some documents that he appears to have copied to the respondents. As the documents and additional evidence were submitted after the close of the hearing and as no additional evidence or submissions had been sought from the parties, the respondents were not called on to respond to the documents.

20In any event, the documents which consist of a letter outlining the impact and effect of acquired brain injuries on those with the condition and letters confirming attendance at treatment and counseling sessions dating back as far as 2004, do not establish that applicant's medical or disabling conditions were such that he was debilitated to such an extent that he could not pursue his legal rights under the Code during the material times. Indeed, the applicant's own materials establish that in November, 2009, he was able to appear before a Standing Committee of the Ontario Legislature as it reviewed the provisions of Bill 168. During the teleconference he also indicated that he was "waging war in a 100 different places".

21In the circumstances, I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination in respect of all of the named respondents in the Application and the delay was not incurred in good faith. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay.

22Accordingly, the Application is dismissed.