HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Felisha Brissett
Applicant
-and-
Loblaw’s Real Canadian Superstore
Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Brissett v. Loblaw’s Real Canadian Superstore
APPEARANCES
Felisha Brissett, Applicant
Self-represented
Loblaw’s Real Canadian Superstore, Respondent
Gordon Fitzgerald, Counsel
Introduction
1This is an Application filed on June 11, 2012, 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 race and colour.
2In her Application, the applicant indicated that the date of the last event which she alleges was discriminatory was February 14, 2010. In explaining why she filed her Application more than one year from the last event, she stated that she had been suffering from “mental stress” following a car accident and was “going back and forth from therapy and counselling and emotionally and physical mental breakdown” [sic]. She indicated that she had undergone dramatic weight loss, irritability, had felt frustrated, sad and angry and unstable as a result of a medical condition. She included with her Application documents relating to criminal charges which had been laid against her, reflecting court appearances in April, May and June, 2010 and March 1, 2011.
3On July 9, 2012, the Tribunal issued a Case Assessment Direction (CAD) noting that the Application appears to be out of time and directing the applicant to deliver and file written submissions regarding delay along with any medical documentation which supports her claim that she was unable to file in a timely manner. The CAD also gave the respondents a time frame within which to file their responding submissions, if any.
4The applicant wrote to the Tribunal on July 24, 2012, submitting that her motor vehicle accident had resulted in “Time consumption of [sic], Bodily injuries, physiotherapy”, she had been in a court case resulting in “Time consumption” and medical conditions had resulted in a “hospital occurrence”, stress, feeling insecure and self-conscious, depression, exhaustion, anxiety, feelings of being overwhelmed and disconnected, withdrawal, mood swings, fatigue, difficulty concentrating, edginess and uneasiness. She also submitted that she suffered stress from not having work or income and being in school full time. She enclosed proof of a medical appointment on December 7, 2011, a December 30, 2010 letter from an insurance company sending her for an “Insurer Examination” in relation to benefits she was claiming following her Motor Vehicle Accident, and a July 23, 2012 invoice from a doctor for a “back to work/sick note” and the July 23, 2012 “back to work/sick note” itself which stated:
To Whom it May Concern
The above named patient was seen in the office for medical reasons during the last two years for several health issues that make her condition unstable many times.
She also indicated that at that time she was unable to provide further medical documentation because her counsellor was away until August 13, 2012 and her medical specialist was away until July 30, 2012. She stated “Any proof of documentation is available upon request”.
5On August 23, 2012, the respondent wrote to the Tribunal and sent a copy to the applicant, denying discrimination and also providing its submissions regarding the issue of delay, submitting that the Application was out of time, the applicant had not established good faith, and permitting the Application to proceed at this point would result in substantial prejudice to the respondent.
6In particular, the respondent cited Imrie-Howlet v. Peel District School Board 2009 HRTO 1399, noting that the Tribunal has “set a fairly high onus on applicants to provide a reasonable explanation for the delay”. It noted that the Applicant must establish that the delay was incurred in good faith. Further, the respondent cited Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241 (“Miller”) stating that “good faith” does not simply mean the absence of “bad faith”. The respondent also cited Orlowski v. Apotex 2010 HRTO 527 (“Orlowski”) regarding the kind of medical documentation required to support an assertion that a medical condition was a good faith reason for the delay. The respondent argued that according to the reasons in Orlowski, the medical documentation offered by the applicant is insufficient to establish that the delay was incurred in good faith.
7Additionally, the respondent submitted that the Tribunal has found that ignorance of time limits, or lack of sophistication as a litigant is not an excuse, and it cited Desaulniers v. Canadian Auto Workers 2009 HRTO 1743 and Thorogood v. International Brotherhood of Electrical Workers, Local 120, 2010 HRTO 786. Finally, the respondent submitted that during the relevant period of time, it appears that the applicant was instructing criminal counsel, pursuing a claim for insurance benefits and was taking a Human Resources course. In light of this, it submits, it is not credible for the applicant to claim that she was an unsophisticated litigant or that she was unaware of legal issues to the degree necessary to excuse the delay in filing the Application.
8With regard to prejudice, the respondent submitted that the passage of two years has hampered its ability to defend itself, due to the fact that memories have faded and also due to the fact that it has been unable to locate the file relevant to the circumstances of the applicant’s termination of employment.
9The Tribunal issued a further CAD on September 7, 2012, directing that there be a preliminary hearing by way of telephone conference call to hear the parties’ submissions on delay, good faith and prejudice, and directing the applicant to provide to the respondent and to the Tribunal any further medical documentation regarding her health condition and any additional further information establishing the time frame of and her role in any court proceedings, no later than 45 days before the conference call. The respondent was directed to provide any additional documentary materials it intended to rely upon within 35 days of the conference call. Further, it directed the parties to deliver to each other and to file with the Tribunal, any additional written submissions and legal authorities within 14 days of the conference call.
10The Tribunal issued a Notice of Confirmation of Hearing on September 20, 2012, advising the parties that the telephone conference hearing would take place on December 21, 2012 and providing the call-in information necessary for participation in the hearing. The Notice also indicated that time frames for delivery and filing of documents was as set out in the September 7, 2012 CAD.
11On September 20, 2012, the applicant wrote to the Tribunal and to the respondent, submitting copies of the same documentation relating to court proceedings as she had submitted with her original Application and also submitting a copy of the criminal charge relating to those proceedings. With regard to medical documentation, she stated that her specialist was away until November 15, 2012, and that she would be unable to provide any medical documentation “until further notice”.
12On November 13, 2012, the Tribunal issued a further CAD directing the applicant to deliver to the respondent and to file with the Tribunal any further medical documentation regarding her health conditions no later than December 1, 2012. It reminded her of Rule 5.6 of the Tribunal’s Rules of Procedure which indicates that a failure to deliver required material to the other party, the Tribunal may refuse to consider the material or may take any other action it considers appropriate.
13On December 7, 2012, the respondent filed additional submissions and legal authorities regarding delay. With regard to the applicant’s assertion that medical issues prevented her from filing her Application in a timely fashion, it repeated its original submissions and also cited Todd v. Rouge Valley Health System 2012 HRTO 2173 regarding the type of medical evidence she would have needed to provide to substantiate her assertion. The respondent again noted that she was able to instruct criminal counsel in the relevant period and that she had been able to file claims with her insurance company for benefits following her motor vehicle accident. Further, the respondent notes that she appeared to have been enrolled in a course for at least part of the relevant period. The respondent submitted that she was actively pursuing other concerns during the relevant time period.
14With regard to the court proceedings in which she was involved, in its additional submissions, the respondent argued that the Tribunal has found that waiting for other legal matters to run their course does not constitute good faith delay. The respondent cited Chen v. Toronto Police Services Board 2012 HRTO 1889 (“Chen”).
15On December 20, 2012, the applicant filed with the Tribunal and delivered to the respondent, a December 20, 2012 invoice for a “a back to work/sick note” from a doctor and a December 20, 2012 note from that doctor, confirming that the applicant had been seen by another doctor, a specialist, “in 2010 for a medical reason”. It stated that the note was being furnished to her “upon her request”.
16At the teleconference hearing in this matter, the applicant submitted that she was involved in a motor vehicle accident in January 2010 and that as a result, she spent a number of days going to the doctor, and there were other days when she could not get out of bed or cope with things due to pain. She also submitted that she was under a good deal of stress and that she had a medical condition which made her very emotional.
17She submitted that she saw a lawyer regarding criminal charges which had been laid against her and that she had to go to court in relation to those charges. She stated that her lawyer told her not to “do anything much” until after the criminal charges were resolved, and that this too is part of the reason why she did not file her Application earlier. She submitted that the criminal charges were resolved in March, 2011 and that she began to seek legal help with regard to this matter in late March, early April 2011. She stated that the lawyer whose help she sought with respect to this matter went away on holiday and that when he came back, they “touched base” and she sought legal counsel form him. She stated that from that point on she was “seeking different ways to follow up” and that her lawyer told her she could go about filing an application with the Human Rights Tribunal.
18When I asked her what she had been doing between the time when criminal charges against her were dropped in March, 2011 and filing the Application on June 11, 2012, she stated that she was a full time student and had a full time job and also had a medical condition. She stated that she was focused on her medical state and was being seen by different doctors.
19At the preliminary hearing, the respondent’s counsel reiterated his above-noted written submissions. He submitted that if the applicant seeks to rely upon medical grounds as a basis for establishing the good faith of her delay, she must provide evidence from her medical practitioner to say that her medical condition prevented her from filing her Application in a timely fashion, but that the evidence she has provided falls far short of that.
20With regard to the applicant’s assertion that her counsel for her criminal matter advised her to let the criminal proceedings run their course prior to commencing an application, given the fact that the charges against her were dropped in March 2011 and she did not file her Application until June 11, 2012, he submitted this is not evidence of good faith. Further, he again cited Chen and submitted that the Tribunal has not accepted an applicant’s assertion that they were letting other legal proceedings finish before filing an application as a good faith reason for delay.
21Counsel for the respondent submitted that as the applicant was a full time student, was employed on a full time basis, and was pursuing remedies from an insurance company at the relevant time, it is established that she was able to deal with other sophisticated issues in her life notwithstanding her medical issue. He submitted she has not shown good faith with respect to the delay in filing her Application.
22Finally, he submitted that there has been a significant delay totalling 2 years and 4 months, and that this results in extreme prejudice to the respondent. He submitted that memories fade and the applicant’s previous supervisor at the respondent employer, upon whose evidence the respondent would rely, has left his employment there and the respondent has been unable to locate him.
DELAY
23Section 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.
24In 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).
25Under 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.
26The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner.
27The applicant relies upon two grounds to establish good faith in her delay: her medical condition and; reliance upon her criminal counsel’s advice to wait until the conclusion of her criminal proceedings before filing her Application with the Tribunal.
28In 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…
29In 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.
30The Tribunal has repeatedly found that waiting for another legal proceeding to conclude prior to filing an Application does not constitute good faith (See Chen and cases cited therein). Further and in any event, despite the applicant’s assertions that she received advice from her criminal counsel to delay in filing her Application until after her criminal matter was resolved, even after criminal charges against her were dropped in March, 2011, she waited approximately 15 more months before filing her Application on June 11, 2012. Given the fact that she was engaged in full time studies, working full time and pursuing her rights with an insurance company in that time period, I am not persuaded that she has established that she was not able to pursue her rights under the Code in a timely fashion. There was no legal basis preventing her from filing her Application in a timely fashion before her charges were dropped, and even after that time, she incurred a significant further delay. Accordingly, I do not find that her explanation of waiting until other legal proceedings were finished establishes a good faith reason for the delay in filing her Application.
31The June 11, 2012 Application is filed outside the one year statutory time limit and I am not satisfied that the delay was incurred in good faith.
32Given my finding regarding the lack of good faith, it is not necessary for me to address the question of prejudice to the respondent.
33I 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.
Dated at Toronto, this 21st day of March, 2013.
”signed by”
Maureen Doyle
Vice-chair