Westgarth v. The Great-West Life Assurance Company, 2012 HRTO 678

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Annette Westgarth Applicant

-and-

The Great-West Life Assurance Company and Pat Bramley Respondents

DECISION

Adjudicator: Kathleen Martin Date: April 3, 2012 Citation: 2012 HRTO 678 Indexed as: Westgarth v. The Great-West Life Assurance Company

WRITTEN SUBMISSIONS

Annette Westgarth, Applicant ) Self-represented The Great-West Life Assurance Company ) Susan Murdoch, Counsel and Pat Bramley, Respondents )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). This decision determines whether the Application should be dismissed because of delay.

BACKGROUND

2On September 11, 2009, the applicant filed the Application against the named and other respondents including the applicant’s employer. In its original form, the Application alleged discrimination on the basis of disability in employment arising from the processing of the applicant’s claim for long term disability benefits and the termination of benefits on September 3, 2009.

3The Application was scheduled for summary hearing. By Interim Decision dated June 21, 2011, the Tribunal dismissed part of the Application, including the allegations against the applicant’s employer: 2011 HRTO 1189. The Tribunal found that the Application could proceed only against the named respondents in respect of alleged harassment of the applicant by Ms. Bramley, a rehabilitation consultant assigned by the Great West Life to deal with the applicant.

4An amended Application has been filed setting out some particulars of the alleged conduct. The applicant describes her initial contact with Ms. Bramley as occurring in January 2008, but after this reference does not include any dates for the other allegations.

5An amended Response has been filed. Among other things, the respondents assert that the alleged incidents to which the Application relates occurred between October 2007 and June 2008 and that, given the delay and absence of good faith, the Application should be dismissed.

6By Case Assessment Direction dated November 28, 2011, the applicant was directed to file a Reply. In addition, given the absence of dates and the claim of delay, I directed as follows:

• Within 14 days of the date of this Case Assessment Direction, the applicant is directed to file with the Tribunal and copy to the respondents, particulars of the date of each allegation set out in the amended Application, along with any submissions and case law addressing whether any delay in filing the Application was incurred in good faith and no substantial prejudice will result to any person affected by delay; and
• Within 7 days of the date of the receipt of the applicant’s submissions, the respondents shall file with the Tribunal and copy to the applicant any response to the additional particulars and written submissions provided;

7In a subsequent Case Assessment Direction, dated January 17, 2012, at the request of the applicant, an extension was granted to file the Reply and submissions.

8The applicant has now filed a Reply which includes submissions on delay. The respondents have also filed submissions.

9The applicant submits that the incidents to which the Application relates occurred between October 2007 and September 2008 and that the Application was “filed in good faith with no delay causing problems”. The applicant separately asserts that the Application was submitted on time.

10The respondents submit that the applicant has failed to act with all due diligence in pursuing her human rights claim and has failed to provide the Tribunal with an explanation as to why she did not do so in a timely manner. The respondents request that the Application be dismissed.

DECISION

11Section 34 (1) of the Code provides:

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.

(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

12Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

13In this case I find that the Application was filed more than a year after the last incident.

14In the original Application the applicant appeared to suggest that the Application was filed more than a year after the last incident. While the applicant identified July 31, 2009 as the date of the last incident, she also provided an explanation as to why she was filing more than a year after the last event, which suggests that the date reference was a typographical error. The applicant’s explanation suggests that the last event was September 3, 2008 given that she references her medical condition and then indicates that she has been “fighting for over a year when I was cut off benefits, have documentation”.

15In the amended Application before me, the issue is narrower: the alleged harassment. In the applicant’s amended Application, the only date provided is January 2008, although there is reference to other events and the respondents accept that the allegations occurred up to June 2008. While the applicant appears to suggest that allegations continued up to September 2008, she has failed to provide particulars of the dates of any events notwithstanding my direction to do so. Her failure to do so leads me to unable to discern any allegation of discrimination occurring within one year of the filing of the Application.

16This leaves the issue of whether or not there is good faith. As set out in s. 34 (2) a person may apply after one year, where 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.

17As stated in Miller v Prudential Real Estate, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.

18In 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

19In this case, the applicant was specifically directed to provide submissions addressing the question of whether any delay in filing the Application was incurred in good faith. Beyond asserting that there is good faith, the applicant has failed to provide any submissions in this regard.

20In the circumstances, I am not satisfied that the applicant has established that the delay in filing the Application was incurred in good faith.

21In reaching this conclusion, I have considered the information referenced by the applicant in responding to why she was filing late in the original Application (see paragraph 14 above) notwithstanding that the applicant has now filed an amended Application. In certain circumstances, a mental health condition may provide an explanation for delay. However, in this case, the applicant has only mentioned that she has a condition; she has not provided any explanation as to how it prevented her from filing the Application earlier. As such, I do not find that this affects the result.

22In view of my conclusions, it is not necessary for me to address the respondents’ submission about prejudice.

23The Application is dismissed.