Paul James v. York University, 2013 HRTO 633

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul James Applicant

-and-

York University Respondent

DECISION

Adjudicator: Paul Aterman Date: April 16, 2013 Citation: 2013 HRTO 633 Indexed as: James v. York University

WRITTEN SUBMISSIONS

Paul James, Applicant Aaron Rousseau, Counsel

York University, Respondent Lisa Constantine, Counsel

Introduction

1The applicant was employed by the respondent as a Master Soccer Coach from the end of 2003 to January of 2010. He alleges that in the course of his employment he suffered from an addiction and depression, that the respondent knew or ought to have known of his disabilities and that it failed to accommodate them. He alleges that the respondent’s failure to do so effectively forced him to resign from his employment.

2The applicant has filed this Application 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 disability.

3The respondent requests that the Tribunal dismiss the Application for lack of jurisdiction because the last incident of discrimination occurred more than one year before the Application was filed.

4For the reasons set out below I conclude that the Application should be dismissed for delay.

Background

5The applicant was hired to administer the university’s soccer program. This included hiring and managing assistant coaches, overseeing the leadership of the program and coaching either the men’s or women’s team. During his tenure the applicant succeeded in raising the calibre of the program, winning titles and increasing media exposure and fundraising.

6He alleges that since 2000 he has had a drug addiction and has suffered from depression. The applicant maintains that there have been periods where he was able to come off drugs, but that he would relapse. He alleges that various employees of the respondent were aware of his addiction, as he had told some of them, while others had remarked at various times on his appearance and expressed concern about his health. He also alleges that because there were times when he could not fulfil some of his job functions, it should have been apparent to the respondent that he had a problem.

7The applicant maintains that he was excluded and marginalised by some of the respondent’s employees because of his disabilities. He also alleges that he had confrontations with some employees because of his performance. He states that the cumulative effect of the respondent not recognising that he had disabilities, his marginalisation and the conflicts that arose from his illnesses led him to resign. The applicant maintains that had the work environment been more supportive and had his hours been reduced, he would have been able to continue working.

8In the fall of 2009 he told the respondent that he would resign at the end of that soccer season, and the respondent took no steps to find out why, or to dissuade him and accommodate his disabilities. His resignation took effect in January of 2010.

Submissions

9The applicant acknowledges that the last alleged incident of discrimination was in early 2010, but maintains that the delay in filing his Application was incurred in good faith. He argues that in the period following his resignation his mental state was such that he was unable to focus the effort to file an Application. In support of this he alleges that after he resigned his disabilities worsened and his life became more unstable. He states that he had no work, he lived in a series of rooming houses and was arrested at one point.

10The applicant has supplied a letter from a registered social worker who provided psychotherapy to the applicant in 2011 and 2012. She states that in this period the applicant’s drug addiction completely clouded his judgement and his ability to focus on other matters in his life. She describes this period as one of extreme drug use punctuated by intensive but unsuccessful episodes of rehabilitation.

11The respondent alleges that in the period following his resignation the applicant was capable of filing an Application. It argues that the applicant has not produced medical evidence to support a claim that he could not file an Application during this time. It also argues that in this period the applicant published 85 articles in a national newspaper from January to October of 2010 and released 42 episodes of his soccer podcast from March of 2011 to February of 2012. Further, it argues that the respondent was capable of authoring and self-publishing a book about his addiction in the two years following his resignation from employment.

12The respondent maintains that in the absence of medical evidence showing that the applicant could not file an Application, and given his ability to pursue the other activities outlined above, there is no basis for concluding that the applicant could not file an Application on time.

13The applicant argues that the newspaper articles and podcasts focused on soccer and required so little effort on his part that their publication can not be regarded as indicative of a clear mental state at the time. He argues that the book he authored was intended to be therapeutic, and took a great deal of time because he was in a “mental fog” in this period.

Analysis

14Section 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.

15The issues to be determined here are whether the applicant’s explanation for the delay in filing meets the test of a delay incurred in good faith and whether any substantial prejudice will result to any person affected by the delay.

16In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal discussed the good faith requirement as follows:

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).

17In Dionne v. Toronto (City), 2011 HRTO 317 at para. 9, the Tribunal applied these general principles to a situation where the applicant attributed the delay in filing to a disability and stated:

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 disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992, and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

18In this case the applicant has not presented medical evidence which meets the test set out in Dionne. The letter provided by the applicant in support of his argument is from a social worker who offers her professional opinion as to the applicant’s condition but states that she is not qualified to provide a medical diagnosis. At no point in the letter does she state clearly that the applicant was so impaired by his disabilities that he could not file an Application.

19The applicant does not take issue with the fact that in this period he published newspaper articles and podcasts and authored a book about his disabilities. Writing to a level that is suitable for repeated publication in a national newspaper requires a high level of intellectual effort. In my view the applicant’s ability to take these actions over periods of months at a time is not indicative of a person who was so disabled that he or she could not file an Application.

20The absence of medical evidence to support the applicant’s argument, as well as the fact that he was capable of writing and publishing in this period, lead me to conclude that the applicant has not shown that the delay in filing an Application was incurred in good faith.

21Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay. See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16.

Order

22The Application is dismissed for delay.