HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daniel Muldoon
Applicant
-and-
Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Muldoon v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Daniel Muldoon, Applicant
Joyce Thomas, Counsel
Ontario (Community Safety and Correctional Services), Respondent
Paul Meier, Counsel
Introduction
1This Interim Decision deals with the respondent’s request to dismiss this Application for delay.
2This Application was filed on September 3, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal. The allegations are found in four appendices to the Application (Appendices A, C, D and F).
3The Application was deferred pending an arbitration proceeding concerning outstanding grievances dealing with identical allegations. Those grievances appear to have been dismissed on a procedural ground, and the matter was reactivated. At the time of reactivation, the respondent was asked to file its Response.
4The Response, filed on February 10, 2012, asked that the Tribunal dismiss the allegations in the Application that were outside the one-year time limit set out in s. 34 of the Code. The Tribunal deferred the request to dismiss at the time, instead scheduling a mediation. When it became apparent that a settlement would not be reached, the Tribunal scheduled a hearing into this matter for August 19-21, 2013.
5On March 20, 2013, counsel for the respondent wrote to the Tribunal asking that the preliminary matter of the timeliness of the allegations be addressed. The applicant had not filed a Reply to the Response or otherwise addressed the respondent’s request to dismiss for delay, and so the Tribunal directed that he do so in a Case Assessment Direction dated June 6, 2013. The respondent was given the right to respond. Both parties filed written submissions.
decision and analysis
6As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation for why he did not pursue his rights under the Code in a timely manner.
7The specific statutory provision, section 34, states in part:
(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.
Factual Background
8The applicant was off work on long term disability (“LTIP”) and work-related (“WSIB”) absences for several periods from at least 2006 onwards. His allegations are found in four appendices to his Application and largely relate, in one way or another, to the respondent’s treatment of him upon return from these various absences. I will address them in their chronological order, rather than the order in which appear in the Application.
9Appendix C of the Application deals with what the applicant describes as an “unresolved” issue with a supervisor taking place during a meeting held on May 12, 2006. The applicant has not provided an explanation for why he did not file a complaint to what would have been the Ontario Human Rights Commission at the time. The applicant filed a grievance with respect to this issue in December 2008. It would appear that he may also have filed an internal discrimination and harassment complaint as well.
10Appendix A outlines a number of what the applicant alleges are infringements of his rights under the Code and other legislation, which can be summarized as follows:
The respondent failed to follow protocol for investigating his allegations of discrimination and harassment alleged to have occurred in 2003.
The respondent failed to implement the applicant’s “Pay for Performance” award by adjusting his salary and making the retroactive pay adjustments for the period from April 2007 - September 2008.
The respondent did not follow through on an agreement reached on (or before) November 5, 2008 to reimburse the applicant for monies he paid during a health-related absence(s) from work to maintain his benefits (May 2007 - March 2008) and pension (April 2007 - September 2008).
The respondent did not set up a meeting in the period after November 5, 2008 to discuss a further “medical precaution” affecting the applicant’s return to work in the fall of 2008.
More generally, the respondent did not provide the applicant with an “accommodation plan” as requested in the fall of 2008.
The respondent failed to implement an agreement concerning his pay during a return-to-work period in the fall of 2008. This resulted in the applicant being underpaid by a total of 168 hours over three pay periods in November and December 2008.
The respondent filled the applicant’s pre-accident position even though it was “required” to return the applicant to this job.
The respondent was releasing confidential information on the applicant’s employment and health to the WSIB contrary to the privacy legislation.
The respondent deducted more credits than necessary from his “time bank” to cover a partial absence on December 1, 2008 and on other unspecified occasions earlier that fall, in reprisal for having filed the unresolved complaint referred to above (point 1.).
In a similar vein, the respondent did not pay the applicant “directly for all absences” during his return to work period in the fall of 2008.
11The applicant prepared Appendix A for his grievance. It is marked as being revised on December 11, 2008, which is around the time he filed his grievance. The text in Appendix A makes it clear that by December 4, 2008, the applicant was aware of these issues. The applicant provides no explanation in his written submissions on delay for the 22-month lapse between the preparation of Appendix A and the filing of his Application.
12Appendix D chronicles the applicant’s allegation that the respondent improperly failed to reinstate his vacation credits, which had been used to top-up his pay for health-related absences in 2008-2009, after this time off was approved as “LTIP” absences in December 2009. He further alleges that the respondent made a number of “unauthorized vacation deductions” from his 2010 vacation credits.
13Similarly, Appendix F deals with the respondent’s alleged failure to reinstate the applicant’s short-term disability (“STSP”) benefits following his return from a leave of absence in October 2009, resulting in him not receiving pay for any of his subsequent illness-related absences in late 2009.
The Timeliness of the Allegations
14Section 34(1) requires applicants to file their Application to this Tribunal within one year of the incident complained of, or within one year of the last incident in a series of incidents, where the conduct is ongoing.
15The respondent acknowledges that the allegation in Appendix F is timely, but takes the position that all the allegations in the remaining appendices are outside the one-year limitation period. The applicant submits that the allegations are part of a series of incidents, the most recent of which are timely and that his Application is, therefore, not out of time.
16With respect to the allegations in Appendix D, the respondent takes the position that the applicant alleges that he discovered that vacation days had been “erroneously deducted” from his entitlement in April 2009, some 17 months prior to him filing his Application. However, it is not clear from the wording of his allegations that, in fact, the applicant is concerned that these days were deducted in the first place. Rather it would appear that the applicant is alleging that the breach lay in the failure to reinstate the days, once his absence was approved for LTIP in December 2009. The parties may wish to clarify this at the outset of the hearing, but at this stage it is not clear to me that the allegations in Appendix D are outside the one-year time period.
17The allegation in Appendix C, however, took place more than four years before the applicant filed his Application in September 2010. The fact that the issue is alleged to have remained “unresolved” (and that applicant continued to feel the effects of the previous act of alleged discrimination) does not make it an ongoing contravention. Moreover, the allegations that a supervisor made “vexatious comments” about the applicant’s disability and absences resulting therefrom, are sufficiently discrete from the timely allegations that they cannot be viewed as part of a “series of incidents” as that term is used in the Code.
18The allegations in Appendix A took place and were known to the applicant, at minimum, 22 months before he filed the Application, which would make them untimely unless they can be characterized as part of a “series of incidents.” The first nine of the 10 allegations (as summarized in para. 10 above) are sufficiently discrete that I cannot find them to be part of a series of incidents with the subsequent (timely) allegations.
19Specifically, these allegations relate to an alleged act of reprisal and the respondent’s alleged failure to: (1) investigate an allegation of discrimination; (2) implement an agreement about the reimbursement of the applicant for monies paid; (3) implement an agreement about a retroactive performance award; and (4) properly accommodate the applicant’s return to work. While, superficially, some of these allegations deal with compensation issues, the acts complained of (reprisal and failure to implement agreements) are distinct from the later (timely) allegations.
20With respect to the remaining allegation in Appendix A – namely that the respondent was not “paying” the applicant “directly for all absences during his return to work period” – it is not possible to tell whether this relates to the subsequent (timely) allegations given the vagueness of the allegation. I leave that issue to be addressed at the hearing.
Good Faith
21The Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. However, in this case the applicant has failed to provide any explanation for the delay in pursuing the allegations in Appendices A and C.
22It is clear that the applicant believed his rights under the Code were infringed in December 2008 (and earlier). He chose to deal with these issues via the grievance process as well as pursuing internal complaints’ mechanisms. This Tribunal has stated that pursuing other legal proceedings before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. I see no reason to deviate from this line of reasoning.
23Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with the untimely allegations found in Appendices A and C to this Application. Accordingly, these allegations are dismissed. If appropriate, the Tribunal can hear further argument at the hearing about delay with respect to the remaining allegation in Appendix A and the allegations in Appendix D.
Dismissal on Other Grounds
24In its submissions, the respondent takes the position that the Tribunal should dismiss the allegations in Appendices A, C and D on the basis of delay. With respect to the remaining allegation found in Appendix F, it takes the position that this is outside the jurisdiction of the Tribunal on the basis that it does not amount to a violation of the Code.
25The applicant was not asked to make submissions on this jurisdictional issue in my June 6, 2013 CAD, and it would not be appropriate for me to make a decision on this point without first affording the applicant the right to be heard. The parties should be prepared at the outset of the hearing scheduled for August 19, 2013 to make submissions on whether the remaining allegations (i.e., those found in Appendices A, D and F), if true, constitute infringements of the Code. The parties may wish to make reference to the Ontario Court of Appeal’s decision in O.N.A. v. Orillia Soldier’s Memorial Hospital, 1999 CanLII 3687 and the Tribunal’s decisions interpreting that decision: Mann v. Dimplex North America Limited, 2013 HRTO 606; Arends v. Children’s Hospital of Eastern Ontario, 2012 HRTO 1574; and Nearing v. Toronto (City), 2010 HRTO 1351.
order
26In sum, the Tribunal makes the following orders/directions:
a. The Application will be allowed to proceed at this time, but the applicant is precluded from seeking a finding of discrimination or requesting a remedy for those allegations in Appendices A and C, which have been dismissed as being outside the Tribunal’s jurisdiction on the basis of delay;
b. With respect to the remaining allegations, the disclosure of documents under Rule 16.3 and disclosure of witnesses under Rule 17 of the Tribunal’s Rules of Procedure must be completed by July 15, 2013;
c. The parties should be prepared to address whether the remaining allegations are within the jurisdiction of the Tribunal at the outset of the hearing on August 19, 2013.
Dated at Toronto, this 10th day of July, 2013.
“Signed by”
Naomi Overend
Vice-chair