Kohar v. Hamilton Wentworth District School Board, 2013 HRTO 1995

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lois-Ann Kohar Applicant

-and-

Hamilton Wentworth District School Board, Ontario Secondary School Teachers’ Federation, Canadian Union of Public Employees Ontario Division and CUPE 4153 Respondents

DECISION

Adjudicator: Ena Chadha Date: December 2, 2013 Citation: 2013 HRTO 1995 Indexed as: Kohar v. Hamilton Wentworth District School Board

WRITTEN SUBMISSIONS

Lois-Ann Kohar, Applicant Self-represented

Hamilton Wentworth District School Board, Respondent Mark Zega, Counsel

Canadian Union of Public Employees Ontario Division and CUPE 4153, Respondents Elizabeth Nurse, Counsel

Ontario Secondary School Teachers’ Federation, Respondent Joshua S. Phillips, Counsel

1The applicant filed this Application on August 23, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging disability discrimination in the areas of services, goods and facilities, employment, membership in a vocational association and contracts.

2The Application, as originally commenced, identified various organizational and individual respondents. The applicant alleges that she was subjected to disability discrimination and reprisal. Her allegations span a number of years going back to 1998.

3On September 26, 2013, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) indicating that the Tribunal may not have jurisdiction over the Application because it appears that, while the Application states the last incident took place in September 2012, it is unclear what incident is alleged to have occurred at that time. The NOID also noted that the Tribunal may not have jurisdiction over the Application as against three individual respondents who are lawyers and an individual respondent who is an arbitrator. The NOID directed the applicant to file submissions responding to the jurisdictional issues.

4On October 15, 2013, the applicant filed submissions asserting that the Application is timely as the last discriminatory event occurred in September 2012 when the respondent school board admitted that they did not provide an interpreter in the arbitration hearing. The applicant’s submissions also stated that she wished to remove the individual respondents from the Application.

Case Assessment Direction

5Given the applicant’s indication that she no longer wants to name the individual respondents, the Tribunal determined, by way of Case Assessment Direction (“CAD”) dated October 28, 2013, that it would not proceed with the Application as against the individual respondents and these individuals were removed from the style of cause.

6The CAD identified three preliminary issues that needed to be considered in order to determine whether the Application should be dismissed, in whole or in part, on the basis of (i) delay; (ii) section 53(8) of the Code; or (iii) because there is no reasonable prospect that the Application or part of the Application will succeed. The respondents were directed that they need not file their Form 2 Responses at this time.

7The CAD noted that the applicant asserts that she requires accommodation in the form of interpretation for the deaf/hard of hearing. As such, the CAD directed the applicant to confirm whether she wished to make written submissions only or present oral submissions before the Tribunal finally determined the issue of no reasonable prospect of success.

8All parties filed written submissions regarding the issues, which have been carefully reviewed by the Tribunal.

9The respondent school board submits that the Application is untimely and also barred under section 53(8) of the Code because the applicant previously filed complaints with the Ontario Human Rights Commission regarding matters raised in the Application. The respondent teachers’ federation submits that the Application is out of time and should also be dismissed, pursuant to section 45.1 of the Code and as an abuse of process, because its subject matter was dealt with in two prior labour board applications.

10The respondent CUPE Ontario and the respondent CUPE 4153 sought clarification from the applicant as to her intentions in naming them because the Application failed to specify any allegations against these respondents. CUPE states that it was not the applicant’s bargaining representative and has no knowledge of the applicant’s claims.

11In written submissions dated November 12, 2013, the applicant confirmed that she wished to proceed in writing only. The applicant also confirmed receipt of CUPE’s correspondence and stated her understanding that CUPE would remain as an affected party. The applicant asserts the Application is timely because the respondents confirmed in September 2012 that there was no interpreter for the arbitration hearing.

DECISION

12For the reasons that follow, I find that the Tribunal does not have jurisdiction over the Application because the allegations as against all respondents relate to events that occurred beyond the Code’s one-year limit and the delay was not incurred in good faith.

13In light of my decision to dismiss the Application because of delay, it is not necessary to consider the other preliminary and jurisdictional issues raised in the CAD and by the respondents.

Delay

14Section 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.

15The 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.

16In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or whether the last incident is part of 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.

17As 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.

18Given 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.

19The Application identifies September 2012 as the date of the last incident. The applicant contends the Application is timely because she received confirmation in September 2012 that the respondents did not accommodate her disability by hiring an interpreter for an arbitration hearing.

20I find the Application must be dismissed as untimely because the applicant has failed to elaborate upon the circumstances surrounding the last alleged incident in September 2012 and also failed to demonstrate that the delay was incurred in good faith as required by section 34(2) of the Code.

21As previously noted, the Application raises a multitude of discriminatory events that go back to 1998. It appears the applicant’s workplace concerns were pursued in a 2003 grievance and arbitration proceedings took place in 2004. The applicant did not identify any timely incident of discrimination, other than to merely assert that in September 2012 she “received confirmation that no accommodation had been made for [her] disability by the lawyers” apparently for the 2004 arbitration.

22In support of her allegation, the applicant indicates that she received financial records in September 2012 which confirm payment for arbitration services, but do not show payment for interpretation services. As discussed below, I reject the applicant’s argument that receipt of documentary confirmation in the September 2012 of a past alleged discriminatory event extends the timeline for filing this Application.

23It is noteworthy that the applicant does not claim that she had no knowledge, was unaware or had no reasonable basis to inquire about the alleged lack of interpretation services prior to September 2012. Rather, she simply states that she “received confirmation” through the financial records that there was no payment of interpretation services.

24In Klein, supra at para. 23, the Tribunal explained that, while the discoverability doctrine may provide an exception to the limitation period to ensure fairness for parties who simply cannot know within the stipulated timeframe that they have a case, it does not exist to allow an applicant to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case. In my view, that is what the applicant is attempting to do in this Application.

25The applicant has not provided any information indicating why she contends to have only learned in September 2012 about the alleged lack of accommodation that purportedly occurred in 2004. The applicant did not explain how, given her persistent efforts to advance her claims, she was unaware of the lack absence of interpretation services, at some earlier point.

26Based on the parties’ materials it appears the applicant has previously filed two Ontario Labour Relations Board (“OLRB”) applications alleging unfair representation against the respondent teachers’ federation. The OLRB issued decisions in 2007 and 2011 dismissing the applications for delay.

27The parties’ materials also establish that the applicant has sought recourse in various legal arenas and availed herself of numerous organizational resources to pursue her claims, including, amongst many others, contacting the police, the Ontario Ministry of Labour, the Law Society of Upper Canada, the Canadian Jewish Congress and the Ontario College of Teachers. It appears the applicant initiated these steps from the time of her grievance through the arbitration in 2004 until present.

28Although the applicant never explicitly states that she was unaware of what took place during the arbitration, I, nevertheless, find it difficult to accept that the applicant was unaware of the circumstances surrounding the 2004 arbitration proceedings, particularly in light of the complaints, investigations and hearings she has launched before the Ontario Labour Relations Board, the Ombudsman of Ontario, the Integrity Commissioner of Ontario and the Ontario Human Rights Commission regarding her concerns.

29Further, other than the bald statement that it was discriminatory for the respondents to have failed to pay for an interpreter at the arbitration, the applicant has provided no particulars about the situation leading to the receipt of financial records in 2012 and its relation to the 2004 arbitration hearing. The alleged financial records confirmation in September 2012 that there was no interpreter hired by the respondents in 2004 does not amount to a new incident of discrimination. At its highest, the confirmation potentially supports the applicant’s allegations regarding earlier events. The Tribunal has held to allow an applicant to revive an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code: see Seetharam v. Iogen, 2010 HRTO 1811.

30I also do not find that the events amount to a series of incidents of discrimination. 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 issues, 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. I find the allegation that the respondents failed to provide disability-related interpretation services during the 2004 arbitration hearing has no commonality in nature with the applicant’s previous allegations of race, sex and religion discrimination and harassment during her employment and, therefore, cannot constitute part of a “series of events” for the purposes of section 34.

31The applicant has also not provided an adequate good faith reason for the delay in acting on her human rights claims. In her Application, the applicant indicated that she commenced numerous complaints and proceedings about her workplace concerns against the various respondents. The applicant’s written submissions acknowledge that she has “documented” her concerns of human rights violations for “a long period of time”.

32The 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.

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 summary, the applicant has not explained the circumstances of the alleged discriminatory incident in September 2012 and failed to provide a reasonable explanation for her delay. I, therefore, cannot accept that the delay was incurred in good faith.

35The Tribunal is without jurisdiction to deal with the allegations and, accordingly, the Application is dismissed.