Duncan v. Ontario Provincial Police, 2013 HRTO 580

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Duncan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Ontario Provincial Police)

Respondent

DECISION

Adjudicator: Paul Aterman

Date: April 9, 2013

Citation: 2013 HRTO 580

Indexed as: Duncan v. Ontario Provincial Police

APPEARANCES

Heather Duncan, Applicant

Self-represented

Ontario Provincial Police, Respondent

Christopher Diana, Counsel

Introduction

1This Application was filed in May of 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 employment because of ancestry, disability, sex and association with a person identified by one of the grounds of discrimination prohibited by the Code.

2In her Application the applicant outlines a series of events from 1998 to 2003 that she alleges were acts of discrimination by the respondent. She indicates that the date of the last allegedly discriminatory event was in August of 2008.

3The respondent has filed a Request for an Order During Proceedings that asks the Tribunal to dismiss the Application on the basis that it is out of time. For the reasons set out below I conclude that the Application must be dismissed for delay.

background

4The applicant was an officer with the Ontario Provincial Police (the "OPP"). In 1998 she was assigned to work on an undercover drug project. She alleges that in the course of that assignment she was treated in a discriminatory manner based on sex and ancestry. The applicant maintains that she was traumatised by this experience and this caused her to go on sick leave. She returned briefly to the workplace in 1999 and again in 2002, but had to remain on sick leave.

5The applicant alleges that the respondent failed to accommodate her disability so that she could continue working. In April of 2003 she resigned from the OPP. Following her resignation she pursued claims for long-term disability benefits and workers’ compensation benefits.

6The applicant alleges that at the time of her resignation the respondent failed to advise her that it had a policy which allowed for former OPP officers to re-apply for employment within two years of leaving the OPP without having to go through the full range of screening and recruitment processes that apply to new recruits. An officer who waited more than two years to re-apply would be treated as any other potential recruit.

7The applicant alleges that she only became aware of this policy in 2008. She maintains that at that time she came across a report in the media which indicated that a local municipality was considering contracting with the OPP for policing services. She inquired with the OPP about being re-hired. She was told that there were no openings in her local area, and that if she wished to again work for the OPP she would have to start the application process at the beginning because she fell outside the two year re-employment window that the policy provides for.

8In March of 2009 the applicant commenced a civil suit against the respondent in the Ontario Superior Court of Justice. The action alleged, among other things, that the respondent discriminated against the applicant on the basis of her disability and that it had wrongfully dismissed her. The Court dismissed the suit on April 26, 2011 on the grounds that it had no jurisdiction. It reasoned that her concerns should have been the subject of grievance proceedings instead of a civil action.

9The applicant then filed this Application on May 4, 2011.

submissions

10The applicant argues that her Application should be allowed to proceed. She maintains that the respondent’s failure at the time of her resignation in 2003 to tell her of its policy regarding re-hiring was an act of discrimination. She further argues that she only became aware of the alleged discrimination when she discovered the existence of the policy in 2008.

11The applicant argues that when she launched a civil action in 2009, she was barred under s. 34(11) of the Code from bringing an Application. Now that the court has dismissed the civil action for lack of jurisdiction, she can proceed with her Application. She maintains that by virtue of s.34(11)(b), her Application is no longer barred because the court did not make a determination as to whether her rights under the Code were infringed. In effect she argues that the period from the filing of the civil action to its dismissal cannot be counted as elapsed time under s.34(1) because she was barred under the Code from bringing an Application. However, because the civil action was not dismissed on its merits, she maintains that she is now free to make the Application. She filed her Application within days of the civil action being dismissed.

12The applicant also maintains that illness prevented her from filing an Application in the period from 2003 to 2008. She argues that her physical and psychological conditions were such that she could not focus on pursuing her Application.

13The respondent argues that even if the applicant’s version of events is accepted, there was no act of discrimination in 2008. It maintains that in 2008 the applicant inquired about the possibility of re-employment and the respondent did nothing more than inform her about how to apply. It took no position on whether she would be re-employed. As such, it maintains that there was no act of discrimination at that time. Moreover, it argues that if there were any discriminatory acts in 2003, the five-year gap from that time until 2008 is too long to sustain the notion that what happened in 2008 is an event in a series of incidents dating back to 2003.

14Finally, it argues that the applicant was capable of pursuing claims for long-term disability benefits and workers’ compensation benefits in the period following 2003. This included pursuing a claim through various stages at the Workplace Safety and Insurance Board and launching an appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) that was settled in 2004. The respondent argues that this indicates the applicant was not so disabled that she could not have filed an Application with the Tribunal.

analysis and decision

15Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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

(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.

16The section also deals with the effect of raising Code violations in a civil suit. S.34(11) reads as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

17In this case the one-year period runs from May 4, 2010. Assuming without deciding that the applicant’s interpretation of the effect of her civil action being dismissed for lack of jurisdiction on s. 34(11) is correct, and that the clock stopped between March of 2009 and April of 2011, the issue to be determined is whether her discovery of the respondent’s policy in 2008 has the effect of bringing the Application within time.

18To do so, the applicant has to show that the delay in bringing the Application was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The applicant found out about the policy when, five years after her resignation, she decided that she was ready to return to work and made inquiries of the OPP.

19The applicant’s assertion that she only appreciated that the respondent’s actions were discriminatory was in 2008, when she found out about the re-employment policy, is an argument that relies on the notion of discoverability. In Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23 the Tribunal explained that concept as follows:

The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

20In order to show that the discoverability doctrine applies here, the applicant has to establish that her discovery of the existence of the policy led her to understand for the first time that she was discriminated against on any of the grounds she has identified in her Application. In my view she has not done so.

21The substance of her Application appears to be a series of allegations that the respondent’s treatment of her as a female undercover officer was discriminatory and exposed her to risks that caused her to suffer from post-traumatic stress disorder. She alleges that the respondent then failed in its duty to accommodate her disability so that she could continue in employment. She has not established a link between these allegations and the alleged failure of the respondent to inform her in 2003 of the criteria it might use in deciding whether to re-employ her at some future date.

22The same is true with respect to her assertion that she discovered the existence of the policy in 2008. Again, there is no nexus established between her discovery of the policy in 2008 and her claim of discrimination.

23The applicant submitted a large volume of documentation in this case. It includes materials dating back to 1999 when she filed an internal complaint with the respondent about how the undercover investigation was handled. It is clear from reading the complaint that at that time the applicant felt strongly that the respondent had discriminated against her on the basis of sex. Similarly, medical reports submitted by the applicant that date back to 2000 indicate that she perceived she was ostracized because of her illness when she attempted to return to work. I conclude from this that the applicant felt that the respondent had acted in a discriminatory manner before she resigned in 2003 and long before 2008. In my view, it is not with the discovery of the respondent’s policy in 2008 that she discovered that she might have a basis for bringing an Application.

24In relation to the impact her disability had on making an Application, I have no doubt that the applicant has been dealing with a serious disability that pre-dates her resignation and continues to today. This is amply documented. However, it is also clear that she was able to pursue a claim for workers’ compensation benefits, up to the point that her appeal to the WSIAT was settled in 2004. She also pursued a civil action from 2009 to 2011. Given her ability to pursue these remedies over the course of this time period, I am not satisfied that the applicant’s disability prevented her from bringing this Application in a timely way.

25In light of the above, I conclude that the Application was not made within time and that the delay was not incurred in good faith. Having made those findings, it is unnecessary for me to consider whether substantial prejudice would result to any party if the Application were to proceed. See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16.

order

26The Application is dismissed for delay.