Lee Ann Annesley v. The Corporation of the City of Mississauga and Margaret Johnston, 2013 HRTO 37

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lee Ann Annesley Applicant

-and-

The Corporation of the City of Mississauga and Margaret Johnston Respondents

DECISION

Adjudicator: Judith Keene Date: January 9, 2013 Citation: 2013 HRTO 37 Indexed as: Annesley v. Mississauga (City)

WRITTEN SUBMISSIONS

Lee Ann Annesley, Applicant M. Steven Rastin,

The Corporation of the City of Mississauga and Margaret Johnston, Respondents Erin R. Kuzz, Counsel

Introduction

1This is a Decision in respect of an Application filed under section 34 of Part IV 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. The Application also alleges reprisal.

2The applicant filed this Application on July 4, 2012. On August 24, 2012, the Tribunal issued a Notice of Intent to Dismiss, acknowledging that the applicant had indicated that a final incident had occurred on July 2, 2011, but indicating that "a review of your Application indicates that it is either not clear what incident of discrimination is alleged to have occurred on this date or how the incident described as occurring on that date constitutes an incident of discrimination within the meaning of the Code". The applicant was asked to make written submissions concerning these issues.

3The applicant retained counsel; the Tribunal received notice of this on July 12, 2012. The applicant's counsel made submissions in response to the NOID. These resulted in an Interim Decision dated October 19, 2012 (2012 HRTO 1986).

4The Interim Decision noted that only three of the many allegations in the Application appeared to have a connection to matters covered by the Code. The first two are an allegation that, when the applicant returned to work after treatment for cancer, (which the applicant's counsel indicated was in October of 2010) her supervisor "came down on" her and bullied her "about not getting any help from anyone", and an allegation that, when the applicant returned to work after a bereavement leave (which occurred in January, 2011), her supervisor "was bitter" about the leave. The third area of possible connection with the Code in the Application is an allegation that the applicant's supervisor, on June 24, 2011, cancelled one week of the applicant's previously-approved two-week vacation. The applicant appeared to assert that this was a reprisal, for the purposes of section 8 of the Code, by her supervisor.

5The Interim Decision noted that all of the allegations relate to a time period more than one year before July 4, 2012, when the Application was filed. However, the letter from the applicant's counsel indicated that part of the delay at issue in respect of the Application stemmed from the fact that the applicant had retained a paralegal who had failed to carry out the applicant's instructions. The letter also referred, without giving specifications, to the applicant's "personal challenges related to her disability". The Interim Decision, at paras. 13 to 15, concluded as follows:

At this point, the information that would be required in respect of a request under s.34 (2) to have the Tribunal deal with the Application has not been fully particularized by counsel for the applicant, but enough detail has been given that it is not plain and obvious that an argument under s.34 (2) would be unsuccessful.

The Tribunal shall deliver the Application, the letter of September 18, 2012 from counsel for the applicant and a copy of this Interim Decision on the respondents.

This is not a final decision with respect to the issue of whether any part of the Application is barred by section 34 of the Code. If the respondent takes the position that the Tribunal should not deal with whether the alleged incidents dated prior to July 4, 2011 constitute breaches of the Code, it may apply to the Tribunal for an Order to that effect. In that case, the applicant will be required to provide submissions relevant to s. 34 (2).

6The Application was sent to the respondents, who filed both a Response and a Request for an Order During Proceedings ("Request") asking that the Application be dismissed as untimely. Counsel for the applicant filed a response to the Request.

7Section 34 of the Code provides:

(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.

8In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The applicant has not done so.

9The term "reasonable" has both objective and subjective elements, both of which must be considered within the context of the Code. Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 contains a brief discussion of both. In regard to the objective element, the Tribunal stated at para. 24:

...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.

10The Tribunal in Miller also briefly alluded to the subjective element of "reasonable" noting at para. 25 that, while

...the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay...there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

11In some cases, an applicant has established that a personal characteristic included as a ground of discrimination under the Code is closely connected to his failure to file his Application on time; see for example Kelly v. CultureLink Settlement Services, 2010 HRTO 977.

12In this case, the applicant has not given any information that could establish that a disability, or any other Code-related circumstance, might have interfered with her ability to pursue her rights under the Code in a timely manner. As noted in the Interim Decision in this matter, counsel for the applicant did not fully particularize reasons for the lateness of the Application prior to the respondents filing the Response and Request. No further relevant particulars were added in the applicant's Response to the respondents' Request.

13Counsel for the applicant stated that the applicant's former representative failed to provide "competent and timely" assistance, but otherwise provided no details that would explain why the applicant, who filed the Application herself, did not do so until over a year after the date relevant to her latest allegation. The applicant's Response did not refer again to the assertion made in the letter previously filed about the applicant having "personal challenges related to her disability". The Response contains no further reference to any disability-related reason why the Application was late, nor is any such reason obvious on a reading of materials filed to date.

ORDER

14For the reason noted above, the Application is dismissed.