K.A. v. Physical and Health Education Canada, 2013 HRTO 1212

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K.A.

Applicant

-and-

Physical and Health Education Canada

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: July 11, 2013

Citation: 2013 HRTO 1212

Indexed as: K.A. v. Physical and Health Education Canada

APPEARANCES

K.A., Applicant

Yavar Hameed, Counsel

Physical and Health Education Canada, Respondent

D. Bruce Sevigny, Counsel

University Of Ottawa

Julie M. Sicotte, Counsel

Introduction

1This is an Application filed on May 24, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to provision of a service because of disability.

2The applicant was enrolled in a graduate program in kinesiology at the University of Ottawa (“U of O”) and was required to complete a 360-hour supervised internship in order to graduate. She began her internship with the respondent Physical and Health Education Canada (“PHE”) on March 1, 2010, but her internship was terminated by them on March 31, 2010 by a letter signed by Sharon May, Director of Programs at PHE. The applicant alleges that the termination of her internship was due to her disability, contrary to the Code. In her Application, she also describes her communication with individuals at PHE following her termination.

3In her Application, the applicant also states:

I believe that Ms. May’s perception of me could have lead to bias Ms. Champeau’s Internship Coordinator, School of Human Kinetics, University of Ottawa, as reflected in the case management of the notice of termination. I began to feel boxed in and was labeled by Ms. Champeau from own institution as needing to ‘gain work experience to face ‘personal challenges’ and needing to ‘reassess, review building blocs and ‘capabilities’” [sic]. I felt browbeaten into a submissive position.

4Additionally, in her Application, the applicant indicated that she had since secured full-time employment.

5In her Application, the applicant provides May 10, 2010, as the date of the last event and states:

I have been actively preparing my submission for several months. In light of my disability, I knew that advance preparation was important in order to ensure that I submit my application within a 12 month time frame. However, even with this precautionary measure in mind, my health has been unpredictable at times – causing a very brief delay in my submission. I am therefore submitting the application with a delay of 12 days. Medical submissions will corroborate both [sic] the reason for the short application delay.

6The respondent filed its Response, including documentation regarding its communication about the applicant with individuals at U of O, on September 13, 2011.

7The U of O filed a Request for Order During Proceeding (“RFOP”) on November 2, 2011, in which it requested status as an intervenor in this Application.

8On December 1, 2011, the applicant filed a Reply.

9On December 7, 2011, the applicant filed a Response to the U of O’s RFOP, objecting to its request for status as an intervenor and stating that it would be inappropriate to grant intervenor status to the U of O, as “recent disclosure has shown them to be an interested party to such an extent that I plan to bring a motion to add them as a respondent to my application”.

10The respondent PHE filed an RFOP on January 24, 2012, seeking to have the Application dismissed on the basis of delay and on the basis of a lack of jurisdiction, as it asserted that it did not provide a service to the applicant.

11On February 27, 2012, the applicant objected to PHE’s request to dismiss the Application.

12The Tribunal scheduled a Preliminary Hearing for July 16, 2012, in order to address the matter of timeliness.

13On July 6, 2012, the applicant filed an RFOP, seeking to add the U of O as a respondent to this Application, as she alleges that it had a role to play in the termination of her internship.

14In these circumstances, the U of O requested an adjournment of the July 16, 2012 hearing date, and there were no objections to its Request. The adjournment was granted and a preliminary hearing was rescheduled and held on April 12, 2013. At that hearing, the parties made submissions regarding the matter of the timeliness of this Application, as well as regarding the applicant’s RFOP seeking to add the U of O as a respondent and the U of O’s RFOP in which it sought status as an intervenor.

15I have considered the parties’ submissions and the Application is dismissed as untimely for the reasons which follow.

FACTUAL BACKGROUND

16The applicant commenced her internship at PHE on March 1, 2010. The internship was to have continued to April 31, 2010, but on March 31, 2010, the Director of Programs at PHE wrote to the U of O, advising that it was terminating the applicant’s internship.

17There is no dispute that U of O advised the applicant on April 6, 2010, that her internship was terminated.

18On April 20, 2010, the applicant wrote an email to the respondent “Re: Response to termination and request for validation of my hours completed at PHE”. In the email, she advised PHE that she disagreed with the decision to terminate her placement, asserting that the problems she encountered during her internship were at least in part due to a failure by PHE to accommodate her disability. She noted that employers have a duty to accommodate disabilities under the Code. She also stated that she would file an appeal at the university in order to be permitted to continue in the program there and she asked whether she could receive credit toward her internship requirement for the hours she had worked at the respondent in order that she may be permitted to complete the hours required for the internship elsewhere. She indicated that she would phone the next day in order to obtain PHE’s answer to her request.

19On April 21, 2010, the applicant wrote an email to the Director of Programs at PHE, indicating that she had phoned and left a message. She requested a return telephone call. Around this time, she also contacted another individual at PHE seeking “positive written feedback” about her work. On May 10, 2010, that individual sent an email to the applicant regarding the work she had completed while at PHE.

20In an email which appears to be dated May 12, 2010, the Executive Director of PHE wrote to the applicant advising her that PHE had submitted all her hours to the university and indicating that she was to communicate directly with the university, in particular with Benoit Séguin. I note that in her Application, the applicant indicated that the date of this email was May 10, 2010.

21On May 19, 2010, the applicant contacted Benoit Séguin, Assistant Director of Graduate Studies at the School of Human Kinetics at U of O, to request permission to withdraw from the internship retroactively. In her email, she also complained to Mr Séguin regarding the termination of her internship. That same day, Mr. Séguin responded via email, stating that he supported her request for a retroactive withdrawal, based on their discussion earlier that day. He also indicated that she should not have complained about her internship and how she was treated in her memo, but that if she wanted to “officially complain” about those matters, she was free to do so. On June 24 2010, the applicant received an email from the Faculty of Graduate and Postdoctoral studies, advising that her request for a retroactive withdrawal from the internship had been granted.

22At the preliminary hearing, the applicant also filed a completed “Medical Certificate” written on a University of Ottawa form, and dated May 28, 2012. The form appears to be intended for use by students returning to work or studies, and has been completed by Dr. M. Sharma, who provided the following information in the “Remarks” section:

[K.] has been suffering from insomnia, anxiety, depression, chronic fatigue syndrome since april 2009. She has flare ups on & off with worsening of her symptoms. This affects her ability to function, meet deadlines or complete her assignments. She was being treated with antidepressants and anti-anxiety medications to be able to function.

23The parties further agreed to accept the truth of the contents of the following statement in the applicant’s written Response to the respondent’s RFOP seeking dismissal of the Application on the basis of delay:

The effect of the Applicant’s disability upon her completion of submissions for filing to the Human Rights Tribunal was aggravated by her psychological response to the termination of her internship and the surrounding circumstances. In effect, the stress triggered by the Applicant working on her application caused her CFS symptoms to flare up making the process of her completion of submissions difficult and protracted.

24The applicant also filed a May 3, 2011 letter regarding the termination of her internship from F. Page, Director of the University of Ottawa’s Centre for Equity and Human Rights. In that letter, the author introduces herself and the Centre, indicating that the Centre’s “work predominantly entails matters related to the Ontario Human Rights Code”. She states that she had first met the applicant on May 18, 2010, and that during the meeting, the applicant described “the exceptional circumstances surrounding the termination of her internship”.

25Additionally, the applicant filed a copy of an email she sent to Ms Page on June 24, 2010, thanking her for meeting with her, stating that the university had accepted her request for a “retroactive withdrawal” and stating that she would “start to draft up the letter for the tribunal”. She asked Ms Page to let her know “what the lawyers says [sic] about my case” and that she looked forward to hearing from her.

Submissions by PHE regarding Delay

26PHE submitted that the subject matter of the Application is the applicant’s treatment during her internship at PHE and primarily the termination of that internship on March 31, 2010. It notes that the applicant indicated that the termination was communicated to her shortly after that date and that U of O indicates it advised her of the termination on April 6, 2010. It submits, therefore, that the relevant date for the purposes of considering delay is April 6, 2010, and that the Application should have been filed no later than one year after that date. It submits that the Application was filed 6 weeks and 6 days late. It also notes that the applicant seeks to extend the relevant date by relying on her post-termination communication with PHE. In any event, it notes that the last communication from PHE was dated May 12, 2010, and that the Application was filed in excess of one year after that date also.

27PHE notes that in the Application, the applicant indicated that she knew that she had to file her Application within 12 months and that she had begun drafting in advance for that reason. It also notes that she provided the May 3, 2011 letter from F. Page, indicating that she had met with the Centre for Equity and Human Rights at U of O as early as May 18, 2010. Additionally, PHE notes that at some point prior to filing her Application, the applicant had secured full-time employment. PHE submits, accordingly, that the applicant was aware of the need to file her Application in a timely fashion, she received professional assistance at the Centre for Equity and Human Rights, and during the relevant one-year time period she was capable of full-time employment.

28PHE also notes the medical documentation provided by the applicant, as well as her assertion that her condition flares up from time to time, making the completion of the Application take longer. Nonetheless, PHE submits that the medical information provided by the applicant is not sufficient to establish that the condition was so debilitating as to prevent her from pursuing her rights under the Code within the statutory time limit. Counsel for PHE described the medical note as “vague and brief” and noted that it provided no opinion regarding the applicant’s ability to pursue her rights under the Code, nor does it specifically address her health during the one year period following the termination of her internship.

29Counsel for PHE cites Dionne v. Toronto (City), 2011 HRTO 317, which he argues states the requirement that medical evidence which indicates that the disability was so debilitating as to prevent the applicant from pursuing her legal rights.

30PHE also submits that it would suffer prejudice if this Application were to be permitted to continue, as it has changed computer systems since the relevant events and it is unable to retrieve emails from that time period.

31PHE submits that the applicant has not met the onus of establishing that the delay was incurred in good faith and submits that the Application should be dismissed.

Submissions by the Applicant regarding Delay

32The applicant submits that she has two arguments regarding the matter of delay. First, she argues that the relevant date is some time after March 31, 2010, as there existed an obligation on the part of PHE to “engage” and respond to her after having terminated her internship. Her counsel argues that where there is no response to a specific query she made, a strict deadline does not put an end to the matter, as there is an expectation that PHE should have responded. He states that in the applicant’s April 20, 2012 email to PHE, she asked that the hours she completed during her internship there be validated in order to permit her to finish her internship requirement elsewhere. He notes that she followed up with another email on April 21, 2010. He submits that the May 12, 2010 email response referring the applicant to the U of O is a “denial or refusal” to do anything about her request. He submits that PHE had a responsibility to give a “substantive response” and that this email constitutes onoing discriminatory treatment. Accordingly, he argues that PHE’s responsibility to respond to the applicant continues “for a reasonable time” beyond May 10, 2010, and that it continues at least to May 24, 2010.

33Counsel for the applicant argues that the applicant’s disability forms the basis of a second argument against dismissing the Application for delay. He agrees that the medical note is vague and that it does not say what the applicant could not do, but he submits that it establishes that for the period relevant to the issue of delay, the applicant was suffering from a bona fide medical condition.

34Counsel for the applicant argues that it is accepted that stress caused the applicant’s Chronic Fatigue Syndrome symptoms to flare up, and that the medical note must be read in light of this fact when deciding what effect her disability had on her ability to exercise her rights under the Code.

35He also submits that as this is an Application where the issue is whether the applicant was dismissed due to her disability, the public policy interests of the Tribunal, as weighed against any prejudice to the respondent in proceeding, support proceeding with the Application. Further, he submts that there is no evidence of prejudice to the respondent, but rather, just a “bare assertion” that it has changed computer systems.

36Counsel for the applicant also argues that the Tribunal has stated that the test for deciding whether a matter should be dismissed on a preliminary basis for delay is whether it is “plain and obvious that the matter should be dismissed”. He cites Hinz v. Hairloft, 2011 HRTO 1773, Dsouza v. Shoppers Drug Mart, 2010 HRTO 1740, and Brooks v. North York General Hospital, 2010 HRTO 453.

37Counsel for the applicant also argues that specific medical evidence is not required to provide details of the applicant’s incapacity to exercise her rights under the Code. He argues that all is needed is that there be evidence to support the fact of a disability and the consequences that flow from that.

DELAY

38Section 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.

39In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks 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 Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period 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 may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly 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).

40Counsel for the applicant argues that the applicant’s post-termination communication with PHE serves to extend the relevant time period beyond April 6, 2010, when the university communicated the fact of the termination of her internship to the applicant. He asserts that PHE had an obligation to respond to her query regarding receiving credit for her hours and that the treatment the applicant received from PHE during this time period was further discrimination. I am not persuaded that the last event was after April 6, 2010, when the applicant was made aware of her termination, but in any event, even if PHE had any further obligation to respond to her queries, it provided her with an answer on May 12, 2010. At that date, at the very latest, therefore, the applicant was on notice that PHE had communicated her hours to the U of O and was directing her to the university if she had any further questions. If the ongoing communication between the parties could extend the relevant time frame, therefore, the very last event would have been the May 12, 2010 email from PHE. The applicant filed her Application later than one year after both April 6, 2010 and May 12, 2010.

41The applicant must establish that the delay, of whatever duration, was incurred in good faith, because under 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.

42Counsel for the applicant also argues that the appropriate test for dismissal of an Application for delay, on a preliminary basis, is whether it is “plain and obvious” that it should be dismissed. With respect, I do not accept counsel’s interpretation of the cases he has cited in support of his argument. In each of the cases cited, the Interim Decision was at a “preliminary stage” prior to the delivery of the application on the respondent and therefore before any of the assertions, including any assertions regarding delay, were challenged. In those circumstances, the Tribunal stated that it would not dismiss those Applications on the basis of delay as it was not “plain and obvious” that they did not fall within the jurisdiction of the Tribunal. In each case, the Tribunal indicated that the Interim Decision was not necessarily the Tribunal’s final decision regarding the issue of timeliness. In Faoro v. Claire’s Stores, 2010 HRTO 500, the Tribunal explained the process that led to the Interim Decision:

Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires her to file written submissions. Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary state if it is ‘plain and obvious’ on the face of the Application that it does not fall within its jurisdiction: Masood v. Bruce Power 2008 HRTO 381; Morin v. Alliance de la function publique du Canada 2008 HRTO 58; Hotte v. Ontario (Finance) 2008 HRTO 63. A decision to continue to deal with an Application is not a final decision regarding the Tribunal’s jurisdiction in respect of the Application (Rule 13.5).

43In Faoro v. Claire’s Stores, the Vice-chair ordered that the Application be served upon the respondent, which was then required to make submissions regarding timeliness. The Vice-chair directed that upon receipt of the Response and the applicant’s Reply, the Tribunal would schedule a half-day hearing to hear oral submissions and evidence from the party “only with respect to the preliminary issue of timeliness”.

44In this case, the Application was served on the respondent and the respondent has requested dismissal on the basis of timeliness. The respondent challenges the applicant’s assertion of a good faith reason for the delay. The preliminary hearing in this matter was the opportunity for the applicant to provide oral submissions and evidence in support of her position that the delay was incurred in good faith. This matter is not at the same stage as the matters in the Interim Decisions cited by the applicant. This Application has been the subject of a preliminary hearing where the applicant provided her evidence and submissions. The appropriate question is no longer whether it is “plain and obvious” that the Application should be dismissed for delay. The question for the Tribunal is now whether, in light of the evidence and submissions by the parties, the circumstances in subsection 34(2) of the Code apply to this Application.

45The applicant asserts that her delay was incurred in good faith because her disability was the reason for the delay. In considering medical reasons for a delay in filing an Application, the Tribunal has required evidence which establishes that the medical reasons prevented the applicant from filing an Application in a timely fashion. At paragraphs 12-13 of Todd, for example, the Tribunal stated:

In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207.... In determining whether an applicant’s mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant’s ability to file an application.

The applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by his mental health. As stated in the Tribunal’s decision in Dionne v. Toronto(City), 2011 HRTO 317…, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See also for example Reid v. Ontario March of Dimes; Downer v. Little & Jarrett, 2010 HRTO 992… and Savage v. Toronto Transit Commission….

46In reviewing the medical evidence provided by the applicant, while it confirms that she sought care for a medical condition, I am not persuaded that it establishes that a medical condition prevented her from being able to file her Application with the Human Rights Tribunal in a timely fashion, and I do not find that it establishes a good faith reason for her delay in filing her Application.

47I do not find that the applicant has established a good faith reason for her delay. I note that she was aware, at least as early as her April 20, 2010 email to PHE, that the Code imposes certain obligations with regard to accommodation of a disability. I also consider the fact that as early as May 18, 2010, she sought out expert help at the U of O’s Centre for Equity and Human Rights and she appeared to be seeking legal assistance there, at a minimum in the form of a lawyer’s opinion. She indicated to them an intention to start a “letter” to the Tribunal right away. In her Application, she indicated an awareness of the fact that she had a 12-month deadline, though her explanation there only makes reference to “several months”. I also note that during the relevant time period, she requested positive written feedback from someone at PHE, she pursued her rights at the university to be sure that she would not have the termination held against her by arranging for retroactive withdrawal from her internship, and she found and performed a full-time job. The onus is on the applicant to establish that any delay was incurred in good faith. I do not find that the applicant’s activity in the relevant time period is consistent with that of a person whose disability was so debilitating that it prevented her from pursuing her rights under the Code. The fact that it was difficult and slow for her to complete her Application due to her disability, and the fact that the delay beyond the one-year time limit may have been brief, in considering all the evidence before me, does not persuade me that the applicant has established that she was unable to exercise her legal rights under the Code. Accordingly, the Application is dismissed.

48Given my finding regarding the lack of good faith, it is not necessary for me to address the question of prejudice to the respondent.

49I find that the circumstances in subsection 34(2) do not apply to the facts before me. This Application cannot proceed under subsection 34(1) of the Code and is therefore dismissed.

OTHER

50Counsel for the applicant and counsel for the U of O also made submissions regarding the applicant’s RFOP wherein she sought to have the U of O named as a respondent in this Application. Additionally, they made submissions regarding the RFOP from the U of O wherein it sought intervenor status in this Application. As the Application is dismissed for delay, it is not necessary for me to consider these issues.

51In any event, were this Application not being dismissed on the basis of delay, I would not grant the applicant’s request in her July 6, 2012 RFOP. Assuming, without deciding, that the U of O would have been properly named as a respondent, and assuming, without deciding, that the principle of discoverabilty would apply with respect to the documentation provided by the respondent in their Response, I would have declined to add the U of O as a respondent. This Tribunal has indicated that the date of discovery of an alleged discriminatory incident does not serve to extend the statutory time limits for filing an Application. Rather, it is something which is relevant to the consideration of good faith. In Louis v. Ottawa Police Services Board, 2012 HRTO 1316 at paragraph 18, the Tribunal stated:

…Subsection 34(1) of the Code sets a time limit of one-year from the date of the incident (or the last in a series of incidents) that is alleged to be discriminatory. This is a purely objective test relating to the time of the incident. If an applicant is successful in establishin that he or she was not aware of an alleged discriminatory incident, the time limit for filing an application is not extended by one year from the date of discovery. Rather, the fact that the applicant alleges that he only discovered the alleged breach of the Code at a later date is considered by the Tribunal in determining whether the delay was incurred in good faith. This is consistent with the approach take in other Tribunal decisions dealing with discoverability…

52In this case, the applicant submits that she discovered when the respondent filed its Response, that the U of O had committed an allegedly discriminatory act. In December 2011, she opposed its RFOP seeking intervenor status on the ground that she intended to seek to name it as a respondent. That same month, she filed a Reply with the Tribunal. On February 27, 2012, she filed her response to the Respondent’s January 24, 2012 RFOP. It was not until July 6, 2012, ten days before the preliminary hearing scheduled in this matter, however, that she filed her RFOP seeking to name the U of O as a respondent. I am not persuaded that she has established a good faith reason for the additional delay from the time of the respondent’s Response to July 2012, and accordingly, I would decline to name the U of O as an additional respondent.

53Counsel for the respondent PHE also referred me to his submissions regarding whether the Tribunal has jurisdiction to consider the question of whether the respondent provided a service to the applicant. As the Application is dismissed for delay, it is not necessary for me to consider this issue.