Wilma Olive-Mills v. U.S. Steel Canada Inc., 2013 HRTO 1197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilma Olive-Mills

Applicant

-and-

U.S. Steel Canada Inc.

Respondent

DECISION

Adjudicator: Eric Whist

Date: July 9, 2013

Citation: 2013 HRTO 1197

Indexed as: Olive-Mills v. U.S. Steel Canada Inc.

APPEARANCES

Wilma Olive-Mills, Applicant

Self-represented

U.S. Steel Canada Inc., Respondent

Patricia Murray, Counsel

1This Application which was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleges discrimination with respect to employment on the basis of sexual solicitation or advances and disability.

2On November 7, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The CAD identified two principal issues that needed to be determined. One, whether the Application should be dismissed on the basis of delay under section 34 of the Code. Section 34 requires that an application be filed within one year of the last incident of alleged discrimination or that an applicant has to satisfy the Tribunal that any delay past the one year time limit was incurred in good faith. Two, whether the Application should, pursuant to Rule 19A of the Tribunal’s Rules of Procedure, 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. The summary hearing was held on April 15, 2012.

BACKGROUND

3The applicant began working in 1978 for Stelco, later purchased by the named respondent. Sometime in the early 1990’s she alleges that she was sexually harassed by a supervisor. The applicant’s allegations were investigated by the respondent and upheld in 1994.

4It appears that in 2002 and 2003 the applicant raised concerns with the respondent about the fact that the supervisor who had harassed her had been promoted by the respondent.

5The applicant was injured in a motorcycle accident in September 2004. The applicant has not returned to work since this accident.

6The applicant was on short term disability until May 31, 2005. According to the applicant she then attempted to return to work but was told by the respondent’s physician, Dr. Jolleymore, that the respondent was not returning the applicant to work, and that she would have to apply for Long Term Disability (“LTD”) benefits.

7The applicant was initially denied LTD benefits by the respondent’s disability carrier. The applicant subsequently filed a statement of claim against the disability carrier for denying her LTD benefits, a dispute that was settled, it appears, in 2009. I had correspondence before me from the applicant’s counsel to the respondent dated April 13, 2007 and written in relation to the applicant’s statement of claim, maintaining that the applicant was unable to perform her job duties because of being disabled.

8In February 2008 the applicant’s counsel wrote to the respondent to inquire about what pension the applicant was receiving from the respondent. Pensions are paid after 30 years of service and this letter is written 30 years after the applicant began working for the respondent. The respondent responded that the applicant was not in receipt of a pension because she had only 26.8333 years of pensionable service and indicating that the applicant had not been accruing credited service for pension purposes since her short term disability entitlements ended.

9In September 2009, the applicant and respondent met to discuss issues related to her employment. The specific nature of this meeting is in dispute. The respondent submits the meeting was in response to a letter from the respondent’s counsel dated August 18, 2009 asking to meet to discuss the issue of long term benefits and pensions. The respondent states that at the September 2009 meeting pension issues were discussed including whether the applicant could qualify for a permanent and total disability pension. The applicant denies that there were discussions about a permanent and total disability pension. She maintains that the parties discussed her employment options which included the applicant being bridged to retirement and the applicant being potentially returned to work.

10The applicant submits that following the meeting she never received a formal response from the respondent as to what was going to happen with her potential return to work, her pension or her interest in being bridged for two years until she was eligible for her pension. The applicant stated that she felt the respondent was leaving her in limbo.

11I had only two indications of contact between the applicant and respondent after September 2009. In a letter dated December 9, 2009, the applicant wrote to the respondent to complain about how the respondent had addressed her 1994 sexual harassment complaint. The applicant briefly refers to her feeling that the respondent had “screwed around” with her pension.

12In a letter dated May 10, 2010, the applicant wrote to the respondent to indicate that she had not heard from the respondent about their “employment dispute” and that she had been in touch with the Human Rights Commission which advised her that she had grounds to make a complaint. In the letter the applicant indicates that she was advised to try to settle her dispute with the respondent before proceeding with possible litigation. She indicates that the settlement could be informal and confidential. The applicant requests a response to her letter from the respondent by May 24, 2010. The respondent did not respond. The parties have not been in contact since.

13On July 27, 2012 the applicant filed her Application.

14The applicant continues to be an employee of the respondent.

SUBMISSIONS ON DELAY

15The applicant submits the respondent’s discriminatory treatment of her was ongoing and continuous to the date of her Application in July 2012 making her Application timely. The applicant submits this is because the respondent did nothing to resolve her employment status and her possible return to work up until the date of her Application.

16In the alternative the applicant submits that her May 10, 2010 letter (and the respondent’s subsequent failure to reply by May 24, 2010) is an incident of alleged discrimination and the applicant has a good faith explanation for why she did not subsequently file her Application until July 2012. The applicant submits that the delay in filing her Application after May 2010 is related to ongoing medical issues and not being able to afford to see or retain a lawyer.

17The respondent submits that just because the applicant continues to be an employee of the respondent does not mean there has been an ongoing act or acts of discrimination by the respondent. It submits that the applicant has to identify an incident or a series of incidents of discrimination to within one year of the Application which the applicant has not done. The respondent does not identify a last incident of discrimination but takes the position that the meeting held in September 2009 and the applicant’s further letter to the respondent in May 2010 do not constitute incidents of discrimination. The respondent submits that the applicant has not shown that the delay in the filing of the Application has been incurred in good faith. It submits that the applicant’s medical information fails to establish that she was unable to file her Application on a timely basis.

DECISION

18The Application is dismissed on the basis of delay. I find that the Application was filed beyond the one year time limit required under section 34(1) and I am not satisfied that the delay in filing her Application was incurred in good faith. Given this decision I have not had to consider whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

ANALYSIS

19Section 34 of the Code states:

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.

Timeliness of Application

20Pursuant to s. 34(1)(b) of the Code, an application is considered timely if it is made within one year following the last incident in a series of incidents of discrimination. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal explained the concept of a “series of incidents”:

The Tribunal has had occasion to consider the application of section 34(1)(b), but its approach to the notion of a “series of incidents” is evolving. As the Tribunal’s jurisprudence shows, the distinction between a single act with continuing effects or a succession of separate acts or violations poses particular challenges. The distinction may be a subtle one and it can depend considerably on the circumstances of each case.

In situations where there is an ongoing relationship, such as an employment relationship, it is sometimes difficult to determine when, as well as whether or not there are ongoing incidents of discrimination within that relationship

… to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code.

21I do not agree with the applicant’s contention that there has been an ongoing series of incidents of discrimination that make her allegations timely. The applicant essentially relies on an argument that the respondent continued to deny her the potential opportunity to return to work until she filed her Application in July 2012 and this continuing denial constitutes an ongoing series of incidents of discrimination.

22In my view the applicant has not established that she had an intent to return to work in the period following May 2010 that the respondent denied. Accordingly, I do not find that the respondent’s actions during the period May 2010 to July 2012 can be defined as ongoing incidents of discrimination.

23It is helpful to examine the applicant’s actions dating back to 2007. The information before me is that the applicant was communicating to the respondent in 2007, two years after she last worked, that she was unable to work because of her disabilities and that she was pursuing long term disability benefits from the respondent’s disability benefits provider. In 2008 she communicated to the respondent an interest in knowing about her pension on the basis, it appears, that she believed she had completed thirty years of service. In August 2009 she communicated to the respondent that she wished to meet “with respect to her Long term Care and Pension issues”. None of this communication indicates that the applicant was indicating or pursuing an interest in returning to work.

24In September 2009 a meeting between the parties is held. The respondent submits that the focus of the meeting was on the applicant’s interests in pensions including potentially applying for a permanent and total disability pension. The respondent submits that the applicant still did not indicate an interest in returning to work.

25The applicant maintains she did indicate such an interest. However, even if I accept that the applicant did orally communicate an interest in potentially returning to work on this occasion I find there is no evidence that the applicant pursued or continued to communicate this interest in any manner.

26The subsequent communication from the applicant to the respondent that I was apprised of was a December 9, 2010 letter in which the applicant complains about her sexual harassment case dating from 1994 and suggests that the respondent was “screwing around” with her pension. There is no mention in this correspondence of the applicant’s interest in returning to work or a request that the respondent take action in regards to this issue. Similarly, the applicant’s May 10, 2010 letter does not indicate an interest in the applicant’s returning to work or ask for clarification as to what the respondent is doing in this regard. Rather it is, as the respondent described, a demand letter stating that without a settlement that the applicant would proceed to litigation. Indeed, in my view the very nature of this letter and the language it employs about seeking an informal and confidential settlement prior to invoking the litigation process can be reasonably interpreted to indicate that the applicant was not, at this point in time, seeking to return to work.

27The applicant has not pointed to any evidence other than referring to her oral statement at the September 2009 meeting to indicate that she communicated to the respondent that she wished to return to work.

28I have no information to indicate that from September 2009 to May 2010 or afterwards that the applicant provided the respondent with medical information to indicate, that after an absence of over five years, she was now medically fit to return to work.

29Under these circumstances I do not find that the respondent’s lack of engagement with the applicant after May 2010 constitutes further incidents of discrimination that makes the Application timely under section 34(1)(b).

Was the Delay in Filing the Application Incurred in Good Faith

30The Tribunal has held that individuals must act with due diligence and file an application within the mandatory one year time limit as this is consistent with the Code’s objective that human rights claims be dealt with fairly and expeditiously. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

31The Tribunal has further held that in order to establish that a delay in the filing of an application was incurred in good faith under section 34(2) an applicant must provide some reasonable explanation for the delay. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. The Tribunal has also set a fairly high onus on applicants to provide a reasonable explanation for a delay. See Miller above.

32The applicant submits that her health prevented her from filing her Application on a timely basis. She states that she suffers from major depression and has been on medication for this condition since 2003. She states that she can be subject to manic depressive lows for extended periods of time as a result of this condition which affect her abilities to do things. She states her anti-depression medication was not properly regulated and it was not until the last two years that she was put on the right medication. She further notes that it took her six months to a year to properly adjust to her new medication.

33She states that she was able to pursue her rights under the Code prior to May 2010. She states that she did have contact with someone from “human rights” prior to sending her May 10, 2010 letter to the respondent. She indicates that she spoke to someone she believed to be a clerk and was discouraged by this person from pursuing an Application. She is not sure whether this person was from the Human Rights Legal Support Centre of Ontario, the Ontario Human Right Commission or the Tribunal.

34She states that after the respondent failed to respond to her May 10, 2010 letter she did want to confer with a lawyer but that she did not have the money to see or retain a lawyer. She states that when she was eventually able to obtain advice from a lawyer she was told she did have a human rights complaint and one that was timely and so she subsequently filed her Application.

35As noted, I have not accepted the applicant’s contention that there was a continuing series of incidents of discrimination up until the time of her Application. However, there remains the issue of what then is the last incident of alleged discrimination. Identifying a last incident of alleged discrimination is necessary in order to decide whether the applicant’s subsequent delay in filing the Application was incurred in good faith.

36The applicant alleges that her May 10, 2010 letter and the respondent’s subsequent failure to respond by the May 24, 2010 deadline is an incident of discrimination. This is disputed by the respondent. However, I am prepared to assume, without deciding, that this constitutes an incident of discrimination for the purposes of determining whether the applicant’s delay in filing her Application is incurred in good faith.

37The applicant contends that her medical condition prevented her from filing her Application earlier. The Tribunal has determined that when considering whether a delay in filing an application may be related to a disability, that it requires medical evidence that an applicant’s disability was so debilitating so as to prevent an applicant from pursuing his or her legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317. See also, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360.

38I do not find the information before me establishes that the applicant’s medical condition prevented her from pursuing her rights under the Code in a more timely fashion. I accept that the applicant has had difficulties with an ongoing medical condition but I do not have before me information, in particular medical documentary evidence, that indicates that this condition would directly impede or prevent the applicant from filing an Application until July 2012, over two years after her she last wrote to the respondent.

39The applicant also indicates that she had difficulties in obtaining legal representation. Looking for a lawyer does not meet the fairly high onus on applicants to provide a reasonable explanation for a delay. See Taylor v. CUPE Local 148, 2009 HRTO 1572. While I appreciate that the applicant’s financial circumstances may have contributed to her difficulty in obtaining legal advice many applicants face similar circumstances and this does not justify the lengthy delay in the filing of her Application.

40The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

41For all these reasons the Application is dismissed on the basis of delay.