Pasley v. Revera Long Term Care Inc., 2012 HRTO 888

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Beverley Pasley Applicant

-and-

Revera Long Term Care Inc., Operating as Reachview Village Respondent

DECISION

Adjudicator: Kathleen Martin Date: May 4, 2012 Citation: 2012 HRTO 888 Indexed as: Pasley v. Revera Long Term Care Inc.

APPEARANCES

Beverley Pasley, Applicant ) Steven Sacco, Representative Revera Long Term Care Inc., ) Erin Porter, Counsel Operating as ReachView Village, ) Respondent )

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”), on September 17, 2009, alleging discrimination in employment on the basis of disability. The applicant alleges that she was discriminated against by not being accommodated in respect of her needs following a work injury.

2On February 27, 2012, I heard submissions on various preliminary issues including whether the Application should be dismissed because of delay and/or because another proceeding has appropriately dealt with the substance of the Application, namely a proceeding before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

3I have determined that the Application should be dismissed on the basis of delay. My reasons follow.

Background

4The Application arises out of the applicant’s attempts to return to work following a work injury. The Application references allegations spanning the period October 27, 2004 (when the applicant was injured at work) to September 17, 2008. Among other things, the applicant alleges that the respondent did not accommodate her, failed to offer her a “suitable job of worthwhile employment” and harassed her. In the original Application, the date of the last incident was identified as September 17, 2008 when the applicant was treated in a rude, abrasive, aggressive and demeaning manner by a representative of the respondent during a “meeting”, the purpose of which was not described. As a remedy the applicant sought lost wages for an unspecified period.

5At the time of filing the Application, the facts of the Application were described as being part of another proceeding still in progress; namely a claim for loss of earnings (“LOE”) benefits for the period April 5, 2007 and following at the Workplace Safety and Insurance Board (“WSIB”). On October 7, 2009, the WSIAT issued a decision in the above proceeding. The WISAT found that the modified work provided to the applicant was not “suitable” and that therefore the applicant had entitlement to full “LOE” benefits as of April 2007. The WSIAT directed that the WSIB determined the duration of these benefits. The applicant was subsequently awarded full LOE benefits to the date of her retirement on January 8, 2012.

6The Response to the Application denied the allegations and raised the issue of delay in filing the Application. In addition, following the release of the WSIAT decision, the respondent submitted that the Application should be dismissed on the basis of s. 45.1 of the Code; namely that another proceeding has “appropriately dealt with the substance of the application”.

7On May 25, 2011, the Tribunal issued a Case Assessment Direction directing the applicant to clarify the remedy being sought and scheduling a two hour hearing to address the following issues:

i. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1 because the substance of the Application has been appropriately dealt with the determination by WSIAT and the subsequent decision to grant the applicant full LOE benefits until she turns age 65 on January 8, 2012?

ii. Was the Application filed within one year after the last incident of discrimination? In this respect, is the alleged incident that occurred on September 17, 2008 an allegation of discrimination on the basis of disability, and if so, how:

iii. If the Application was not filed within a year after the last incident of discrimination, was any delay in filing the Application incurred in good faith and with no substantial prejudice to the respondent?

8On June 8, 2011, the applicant sought to amend her remedial request. At an earlier stage, the applicant appeared to amend her remedial request from wages to include only legal fees. The applicant subsequently withdrew this request and clarified that the remedy sought was limited to “general damages and compensation for mental anguish.

9On August 11, 2011, the Tribunal issued a further Case Assessment Direction directing, among other things, that the parties provide submissions on whether a proposed amendment to the remedy should be granted.

10At the hearing, the respondent withdrew its objection to the applicant’s request to amend the Application and I heard submissions from both the applicant and respondent on the issue of delay and section 45.1.

11I will address first the issue of delay.

Should the Application be dismissed on the basis of delay?

12Section 34 of the Code provides as follows:

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.

13Under section 34, the Tribunal has no jurisdiction to deal with an application 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, i.e. 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.

14In this case, the applicant initially argued that the Application was timely insofar as it was filed within one year of the last incident in a series of incidents; namely within one year of September 17, 2008. However, when asked for particulars as to how this “last” incident was discriminatory, the applicant clarified that she was not relying on the last incident as an allegation of discrimination based on disability under the Code. The applicant states that while the incident is “related” to her allegations of discrimination, the incident itself was not discriminatory as it pertained to the manner in which the applicant was treated by the respondent’s representative during the hearing of the applicant’s WSIB claim conducted by the appeals resolution officer. The applicant’s representative concedes that the Application was filed “well over 12 months after the last incident” of discrimination.

15There continued to be a lack of clarity as to what was the last incident of discrimination. The applicant’s representative suggested at one point that the last incident was April 5, 2007 when the parties were unable to agree to modified work and elsewhere referenced the last incident as December 6, 2006. I do not find that I need to resolve the contradictory submission over the date. Whether the delay is 17 months or 21 months, does not affect the result in this case.

16Turning to the question of good faith, as the Tribunal stated in Miller v. Prudential Real Estate, 2009 HRTO 1241 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.

17In 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 she did not pursue 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. The Tribunal has set a high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2): Miller, above.

18In this case the applicant explained the delay by stating that she was “unaware” of human rights and that her union did not advise her of her options. The applicant could not recall specifically when she became aware, but suggests that it was after the hearing before the WSIB appeals resolution officer on September 17, 2008. The applicant also states that she did not make inquiries earlier because she thought the proceeding at the WSIB would resolve the matter through the hearing process or through mediation at work.

19I do not find that these reasons considered separately or together establish good faith.

20While the Tribunal has stated that ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that she had no reason to make inquiries about her rights (See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548, at paragraphs 12 and 14, and Lutz v. Toronto, 2009 HRTO 1137).

21In this case, the applicant has pointed to the WSIB proceedings and her belief that the process would resolve the matter as the reason she did not make inquiries sooner. I do not find that this is a reasonable explanation. The Tribunal has repeatedly held that 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. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991. It was certainly open to the applicant to consider her options earlier in the event that the WSIB proceeding did not result in a conclusion that was satisfactory to her. Further, I cannot ignore the fact that the applicant commenced the Application with this Tribunal before the proceeding at the WSIB was concluded. This undermines the position now being claimed that she delayed in coming here because of the WSIB proceeding.

22The applicant had filed medical information related to the request to amend the Application to include a claim for “general damages” and compensation for “mental anguish”. When asked, the applicant clarified through her representative that she was not taking the position that any of the circumstances set out in those documents prevented her from filing the Application at an earlier date. In the circumstances, I have not considered this potential evidence in determining the issue of good faith.

23Having regard to the submissions made, I am unable to find that the applicant has provided a reasonable explanation for the delay. I am therefore not satisfied that any delay was incurred in good faith.

24In view of this conclusion, I do not find it necessary to address the respondent’s position that they have been prejudiced by the delay in responding to the Application.

25Further, I do not find it necessary to address the remaining issue identified in the Case Assessment Direction of whether another proceeding has appropriately dealt with the substance of the Application.

26The Application is dismissed.