Matthew O’Flanagan v. The Ministry of Education, Ontario Teachers’ Pension Plan Board and Ontario Teachers’ Federation, 2012 HRTO 761

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew O’Flanagan

Applicant

-and-

The Ministry of Education, Ontario Teachers’ Pension Plan Board and Ontario Teachers’ Federation

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: April 16, 2012

Citation: 2012 HRTO 761

Indexed As: O’Flanagan v. Ontario (Education)

1The purpose of this Interim Decision is to determine whether correspondence between counsel for the applicant and the Ministry of Education (“Ministry”) amounts a good faith explanation for any delay in filing the Application.

OVERVIEW

2Eighty-one Applications have been filed alleging that the survivor benefit provisions of the Ontario Teachers’ Pension Plan are discriminatory based on sex and marital status contrary to sections 1, 5(1), and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The respondent, the Ontario Teachers’ Pension Plan Board (“OTPPB”), has filed a Request for an Order During Proceedings (“Request”) seeking the early dismissal of the Applications pursuant to section 34(1) of the Code. The OTPPB states the Applications were filed outside the limitation period. The other respondents support the OTPPB’s Request.

4This Application is proceeding as a lead case on the issue of delay. In an earlier CAD, the Tribunal scheduled an in-person hearing of the Request for February 29 and March 1, 2012, and directed the parties to file written submissions in relation to the Request.

5In his response to the Request, the applicant argued that the respondents are estopped from raising the issue of delay and/or that they waived their right to rely on the limitation period. In support of this position, he relies on correspondence between his counsel, Mr. Keel, and the Ministry. The applicant also alleged that any delay in filing the Application is in good faith, among other things, because of ongoing written communications or negotiations between the applicant’s counsel and the Ministry. The parties agree that there were no oral discussions.

6The OTPPB filed written submissions in which it questions whether Mr. Keel can continue to act for the applicant in the circumstances. The OTPPB’s position is based, among other things, on the applicant’s reliance on correspondence between counsel to establish estoppel, waiver, and good faith. It is also based on the fact that Mr. Keel is a potential witness in regards to whether the Tribunal’s filing process constitutes a good faith reason for any delay in filing the Application.

7I concluded that it was necessary to determine whether Mr. Keel may continue to act for the applicant before taking any further steps in this proceeding. I sought additional written submissions and the Tribunal scheduled a two-hour telephone conference hearing on February 29, 2012, to hear oral submissions from the parties regarding the issue of Mr. Keel’s ability to act for the applicant.

8At the February 29, 2012 hearing, Mr. Keel withdrew the argument that the correspondence with the Ministry amounted to either an estoppel or a waiver of the limitation period. He maintained, however, that the written correspondence establishes a good faith basis for any delay in filing the Application. Mr. Keel advised that he was not involved in communications with the administrative staff at the Tribunal concerning the filing of this or the other 80 applications. Someone else within his office was involved in these communications.

9Counsel for the OTPPB maintained her objection to Mr. Keel continuing to act for the applicant. She does not dispute the existence or content of the written communications between Mr. Keel and the Ministry. However, she argued that, to the extent that Mr. Keel seeks to make submissions characterizing the content of the correspondence between himself and the Ministry, he may effectively be giving evidence.

10At the outset of the February 29, 2012 hearing, I questioned whether written communications between the applicant’s representative and the Ministry (however characterized) could constitute a good faith reason for delay. I questioned whether, in light of the Tribunal’s jurisprudence in this area, it would be necessary or appropriate to consider any evidence or oral submissions regarding the interpretation of these communications.

11At the February 29, 2012 hearing, the parties agreed that I would address the issue of whether communications between the applicant’s counsel and the Ministry constitute good faith as a preliminary matter. The parties were invited to provided further written submissions on this issue. Further, in a CAD dated March 5, 2012, I wrote:

As agreed to by the parties, the applicant’s submissions may refer to the correspondence from the respondent, but may not provide submissions on how these documents should be characterized or interpreted. Similarly, the respondents’ submissions should not relate to the interpretation or characterization of the correspondence. In rendering its decision regarding good faith, the Tribunal will be guided only by the language of the correspondence.

ANALYSIS

12As I have indicated, one of the issues in this matter is whether or not the Application was filed within the limitation period set out in the Code. While I will need to address the larger issue of delay at a later stage, the only purpose of this Interim Decision is to determine whether, if I were to find that the Application was filed outside the one year limitation period, the correspondence between the applicant’s counsel and the Ministry would amount to a good faith reason for the delay.

13To be clear, at this stage of the proceeding, I am making no finding as to whether or not the Application is timely, nor am I addressing any of the other good faith arguments raised by the applicant or whether any delay caused substantial prejudice to any person affected by the delay.

14Section 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.

15The initial onus lies with the applicant to show that any delay in filing the Application was incurred in good faith, within the meaning of the Code. If he is able to establish good faith, the onus shifts to the respondents to show that they will suffer substantial prejudice as a result of the delay in filing the Application.In 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 did not pursue his 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. The Tribunal has set a fairly high threshold for applicants to provide a reasonable explanation for the delay. For example, it has held that good faith is more than an absence of bad faith: see, for example, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, and Cort v. Suncor Energy, 2010 HRTO 853.

16The parties have filed correspondence between the applicant’s counsel and the Ministry. In written submissions, the applicant refers to this correspondence as “ongoing advocacy”. In essence, the correspondence shows that before filing the Application, the applicant’s counsel made a number of attempts to raise the issues contained in the Application with Ministry and to obtain redress without having to resort to litigation. The applicant argues that this ongoing advocacy constitutes a good faith reason for any delay in filing the Application.

17The OTPPB argues that not filing an Application while pursuing rights in another forum does not amount to good faith within the meaning of the Code. It relies, among other things, on the Triubnal’s decisions Cartier, supra and Cort, supra.

18As the Tribunal pointed out in an oft-cited passage of Cartier, supra, at para. 23: waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

19The Tribunal has specifically applied this reasoning to instances involving ongoing negotiations or discussions between parties, concluding that these do not amount to a good faith reason for delay: see, for example, Calderon v. Pilot Plumbing Products Inc., 2012 HRTO 254, at para. 19; Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578, at para. 7.

20The correspondence between Mr. Keel and the Ministry establishes that there were discussions between the parties that spanned more than one year. It is clear that the applicant was attempting to obtain redress without having to resort to litigation. However, the Tribunal’s established case law states that such discussions are not a good faith explanation for delay in filing an Application.

DECISION

21For all of the above reasons, I find that the correspondence between counsel for the applicant and the Ministry does not constitute a good faith reason for delay.

22In light of this conclusion and given that the applicant has withdrawn his estopppel and waiver arguments, at this stage of the proceeding, I see no reason to conclude that Mr. Keel cannot continue to act for the applicant. It does not appear likely that correspondence between Mr. Keel and the Ministry will be relevant to any outstanding issues.