Kelli Leizer v. Patrick Knight, 2013 HRTO 1652

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelli Leizer Applicant

-and-

Patrick Knight Respondent

DECISION

Adjudicator: Ena Chadha Date: October 2, 2013 Citation: 2013 HRTO 1652 Indexed as: Leizer v. Knight

WRITTEN SUBMISSIONS

Kelli Leizer, Applicant Self-represented

Patrick Knight, Respondent Caroline V. Jones, Counsel

1This Application was filed on August 7, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination with respect to employment on the basis of sex and reprisal.

2Responding to Question 7 of the Application which asks what is the date of the last event, the applicant indicated that the last alleged discriminatory incident occurred on May 21, 2011. In explaining why she was applying more than one year from the last incident, the applicant stated that she was travelling around the world from September 2011 until June 2012. The applicant also stated that she was waiting for the completion of an investigation of her internal workplace complaint regarding the alleged discrimination.

3The Application was originally filed as against an institutional respondent, the Toronto District School Board ("TDSB"), and the current individual respondent, Patrick Knight. In their respective Responses filed in October and November 2012, the respondents requested that the Tribunal dismiss the Application due to the delay in the filing of the Application.

4The parties exchanged submissions in January and February 2013 regarding the issue of delay.

5On January 29, 2013, the Tribunal granted the applicant's request to withdraw the Application as against the TDSB. As such, the Application was maintained as against only the individual respondent Patrick Knight ("the respondent").

6Various preliminary issues arose regarding this Application and two other files related to the same respondent. As a result, the Tribunal convened a Case Management Conference Call on May 21, 2013 and provided the parties with an opportunity to file further written submissions regarding the issue of delay.

BACKGROUND

7The applicant was a physical education teacher at the high school where the respondent was a Vice-Principal and Principal.

8The Application identifies a number of alleged incidents of discrimination and harassment by the respondent beginning in September 2009. The applicant alleges that she was subjected to gender bias, unfair treatment and criticism, isolation and humiliation over the course of a three-year period. The respondent denies the allegations.

9The Application narrative describes the last incident involving the respondent as having occurred on or before May 25, 2011. This narrative characterizes the May 2011 events as the respondent's "harassment by proxy".

Summary of Parties' Positions

10The applicant submits that she was subjected to an on-going pattern of gender-based discrimination and harassment from 2009 until the events described in the Application as the harassment by proxy in May 2011. The applicant argues that the delay in filing the Application was incurred in good faith because she was out of Ontario from July 2011 to June 2012 and much of this time was spent in remote locations where she was without ready access to the tools necessary to file an application. The applicant asserts that there is no prejudice to the respondent if the Application is permitted to proceed because the respondent has had notice of her human rights concerns since at least December 2010.

11The applicant further argues that the delay was in good faith because she was awaiting the result of an internal human rights investigation. The applicant indicates that the investigation report was delivered to her in November 2011 when she was out of the country. The applicant submits that she acted with due diligence in both relying on the internal process and filing her Application in August 2012. The applicant points out that when she returned from her travels in June 2012 she took immediate steps to inquire about the status of the internal investigation with her union and colleagues and filed this Application as soon as she became aware that the TDSB had failed to address the violations as documented in the workplace investigation report. The applicant argues that the respondent should not be permitted to benefit from the inadequacy of the TDSB's internal human rights process. Lastly, the applicant indicates that she was unable to meet the Code deadline because during her trip she experienced severe back pain and was hospitalized in April 2012 while in Australia.

12The respondent contends that the Application was brought beyond the Code's one-year limitation period and that the delay was not incurred in good faith. The respondent requests that the Tribunal dismiss the Application because of the delay in filing the Application. The respondent points out that the applicant clearly believed her human rights were violated in advance of commencing this Application because, in March and April, 2011, the applicant had already filed multiple grievances, an occupational health and safety complaint and an internal human rights complaint against the respondent.

13The respondent argues that there are no incidents of discrimination alleged in the Application after May 2011 and that the parties had no contact after June 2011. The respondent submits that the applicant ought to have brought her Application on or before May 21, 2012, that being one year after the date identified in Question 7 of the Application. The respondent submits that there are no series of incidents connecting the out of time allegations to the Code's deadline. The respondent asserts that the applicant's personal circumstances related to her travels do not constitute a good faith basis to extend the one-year timeline.

DECISION

14For the reasons that follow, I find that the Tribunal does not have jurisdiction over the Application because the allegations relate to events that occurred beyond the Code's one-year limit and the delay was not incurred in good faith.

Analysis

15Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident or the last incident in a series of incidents of alleged discrimination. Section 34 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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

16The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay in bringing their human rights matters forward: see Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code's objective that human rights claims should be dealt with justly and expeditiously. Thus, the Code requires an applicant to act with all due diligence and file an application within one year of the alleged discrimination when seeking to pursue a human rights claim.

17In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or the last incident in a series of incidents of alleged discrimination. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.

18As noted by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, to establish the delay was "incurred in good faith", the applicant must show something more than simply an absence of bad faith. The applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner: see Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

19If the applicant is able to establish good faith, the onus shifts to the respondent to demonstrate substantial prejudice as a result of the delay in filing the Application. Given that both criteria of good faith and lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice if an applicant has failed to pass the good faith threshold: see Esanu v. Georgetown Men's Non-Contact Hockey League, 2009 HRTO 579.

When was the last alleged incident of discrimination?

20The Application narrative indicates that the applicant's concerns culminated in and around May 25, 2011 and as such, notwithstanding the fact that Question 7 identifies May 21, 2011 as the last date, I am prepared to proceed with the analysis on the basis that the last alleged incident of discrimination is May 25, 2011.

21In her June 2013 written submissions, the applicant appears to argue that the alleged discrimination continued into the spring of 2012 when the respondent was given an award by the TDSB for being an exemplary school administrator. The applicant alleges that the TDSB's decision to make the respondent a recipient of such an award fostered the poisoned work environment.

22I reject the applicant's argument that the 2012 exemplary school administrator award extends the timeline for filing this Application for several reasons. First, the alleged 2012 award is a new allegation and does not form part of the existing Application. Second, the applicant's claim that the 2012 award demonstrates that the TDSB "has continuously and actively supported" the respondent is an allegation challenging the TDSB's decision granting the award. To allege that it was discriminatory of the TDSB to have selected the respondent impugns the decision of the TDSB and does not relate to any decision or action on the part of the respondent. The applicant withdrew her case as against the TDSB in January 2013 and, as such, this allegation cannot proceed.

23Lastly, the allegation regarding the TDSB's 2012 award has no commonality in time or in nature with the applicant's allegations of differential treatment and harassment by the respondent in 2009-2011 and, therefore, cannot constitute part of a "series of events" for the purposes of section 34. The Tribunal has repeatedly held that a gap of more than one year between incidents in a series would in most cases interrupt the series and that incidents involving different facts and parties may also not be considered to form a series of incidents: see Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Polihronakos v. Mississauga (City), 2010 HRTO 1433.

24In conclusion, I find that the Application was filed on August 7, 2012, approximately 15 months after May 25, 2011, that being the last alleged incident of discrimination, and approximately three months beyond the one-year limitation period provided for in section 34 of the Code.

Was the delay incurred in good faith?

25In determining the issue of good faith, the Tribunal has considered factors such as the length of the delay, whether Code-related reasons directly impeded the applicant's ability to file an application, the nature of the allegations, and whether the applicant was able to raise allegations in other venues during the period in question: see Corrigan, supra; Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

26The applicant submits that the main reason for the delay in filing the Application is the fault of the TDSB. The applicant argues that she did not file her Application in time because she was awaiting and relying on the TDSB's internal complaint process. I find that this is not an adequate good faith reason for the delay. The Tribunal has emphasized the fact that a person is pursuing other avenues or waiting for other 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, supra; Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578 and Huo v. University of Western Ontario, 2012 HRTO 198.

27It is noteworthy that, in addition to the internal human rights complaint, the applicant sought recourse through her union by filing a number of grievances and also sought redress through an occupational health and safety complaint, all of which occurred prior to filing with the Tribunal. Based on the applicant's narrative it is evident that the applicant was well aware of her rights and actively advanced her rights through various proceedings before commencing this Application. The applicant has offered no good reason for why she waited for the other complaint procedures, which clearly involved parallel human rights concerns, to conclude before seeking to file this Application. Nothing prevented the applicant from filing a timely application under the Code while continuing to pursue her other complaints.

28The applicant also contends that she was unable to file her Application in time because her travels around the world took her to remote areas where she did not have access to the tools to file an application. I reject this explanation for the delay for several reasons. First, although the applicant provided conflicting dates regarding when she left on her travels (both July and September 2011 have been cited), there is no information to establish that she was prevented from filing a timely application before departing on her travels.

29Further, other than the bald statement that she did not have access to tools to file an application, the applicant has provided no particulars about her travels, the remoteness of the locations and the purported lack of communication tools. The only information before the Tribunal is that in April 2012 the applicant was in Perth, Australia. Perth is one of the largest cities in Australia and presumably tools to be able to communicate with Canada are accessible there.

30Further, the applicant's statement that she did not have access to communication tools is difficult to reconcile with the information provided by both parties regarding the applicant's on-going involvement in her other complaints. The parties' submissions and documentation establish that the applicant received the internal workplace investigation report in November 2011 while she was out of the country and that the applicant engaged in email communication with her union during her travels, including providing instructions regarding her grievances.

31The applicant also alleges that she was unable to meet the one-year deadline because she was hospitalized in April 2012 while in Perth, Australia due to severe back pain. The applicant provided a copy of a medical note confirming that she experienced back pain incapacitating her from flying. While this document clearly indicates that the applicant sought medical care during her travels, I am not convinced that the applicant's health precluded her from pursuing her rights under the Code. The physician's note establishes that the applicant was hospitalized on April 14, 2012 and had an MRI on April 16, 2012. Based on the content of the note, it is apparent that the note was written to document that the applicant was unable to fly. There is no information in the medical note to indicate the duration of the applicant's condition, the length of the hospitalization and whether it exceeded the April 14, 2012 date, and what, if any, other restrictions the applicant experienced other than an inability to fly.

32The applicant bears the onus of establishing that her disability directly impacted her ability to comply with the limitation period. The Tribunal has held that it requires medical evidence that a disability was so debilitating so as to prevent an applicant from pursuing her legal rights under the Code: see Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, supra and Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

33Having carefully considered the matter, I am not satisfied the applicant's delay in filing the Application was incurred in good faith. The applicant has not provided a reasonable explanation for the failure to file a timely Application under the Code. As I am not satisfied that the delay in filing the Application was incurred in good faith, it is not necessary for me to determine whether allowing the Application to proceed would cause substantial prejudice.

34In light of the fact that the last discriminatory event alleged in the Application occurred 15 months prior to the filing of this Application and that the applicant has failed to satisfy that the delay was incurred in good faith, I find that the Tribunal is without jurisdiction to deal with the Application. Accordingly, the Application is dismissed.