HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Matthews
Applicant
-and-
Toronto Police Services Board
Respondent
DECISION
Adjudicator: David Muir
Date: April 19, 2013
Citation: 2013 HRTO 659
Indexed as: Matthews v. Toronto Police Services Board
APPEARANCES
Paul Matthews, Applicant
Phillip Matthews, Representative
Toronto Police Services Board, Respondent
Heather Crisp, Counsel
1The applicant filed this Application, dated July 6, 2012, under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of disability. This Decision deals with a Request for Order During Proceeding (“Request”) filed by the respondent seeking the dismissal of this Application on the basis that it is an abuse of process and, alternatively that it is out of time.
Background
2This is one of two Applications filed by the applicant related to his claim that the respondent has failed to accommodate a disability. In Application 2010-05360-I I issued a Case Assessment Direction in January 2012 in which I summarized the allegations of the applicant as follows:
a. The applicant alleges that he is a person with a disability, "Meniere's Disease" and an associated "anxiety disorder";
b. The applicant alleges that he has provided detailed medical documentation to the respondent
c. The applicant alleges that he has requested. as a “necessary and essential” accommodation. that my employer forego a transfer from my current work location;
d. The applicant alleges that the respondent ignored their obligation to accommodate him to the point of undue hardship and denied a request not to be transferred.
e. The applicant alleges that following his transfer he has considerable difficulty, long time from work due to his medical condition and may be forced to accept an early retirement.
3The allegations in this Application are virtually identical to the first except that the applicant alleges in this Application that he has been forced to accept early retirement, as indicated he might have to in paragraph 2(e). In this Application the applicant alleges that:
a. He is or was a person with a disability and employed by the respondent;
b. He was being accommodated as agreed between his physician and the respondent’s Medical Advisory Service (MAS) until the respondent, without discussion, indicated their intention to transfer the applicant to another work location;
c. That in September 2009 he provided further medical information to the respondent and requested that the respondent forgo the transfer. The applicant alleges that the MAS agreed with his physician that the transfer was not appropriate but was over-ruled by management;
d. That the employer has no policy on accommodation for civilian employees;
e. That he accepted the transfer, as ordered, despite the failure to accommodate;
f. That facing ongoing difficulties, he was forced to accept early retirement, leaving the workplace in July 2011 and formally retiring in November 2011;
g. That as a consequence of his early retirement, he has lost pay, sick credits, pension credits and his benefits in their entirety; and
h. That the respondent ignored the procedural duty to accommodate and at no time, despite “extensive knowledge” of his disabilities and despite prior agreement, did not discuss or develop an appropriate accommodation plan.
4The disposition of the first Application is material to the issues raised by the respondent. In the first Application the respondent filed a Request seeking access to various medical records of the applicant. The applicant consented to part of the respondent’s Request, but refused to allow the respondent to have access to the medical professionals that reviewed the applicant’s medical information and provided advice to the respondent in the accommodation process. I disagreed with the applicant’s position and granted the respondent’s Request, in large part.
5In apparent response to this ruling , the applicant’s representative wrote to the Tribunal on January 30, 2012. In this letter, the applicant’s representative took significant issue with my rulings on the production issues. The letter went on to state as follows:
It is very apparent that the Tribunal has clearly forgotten why it came into existence in its current form. Regardless the applicant will be ignoring the ridiculous content of the CAD and not making the information/documents directed available [as it serves no meaningful purpose], on this application. When possible, and at our convenience, I will review the matter with the applicant in person and if we deem it necessary, we will file a Notice of Withdrawal. In the meantime, you can consider the hearing date also to be meaningless as neither the applicant nor the writer will be present.
6On February 3, 2012, the applicant by his representative indicated that the applicant intended to withdraw the first Application because the issues it raised no longer had relevance because of the passage of time.
7In a CAD issued on February 7 2012, I noted that it appeared from the correspondence from the applicant that he appeared intent on abandoning or withdrawing the Application. I also expressed some concern with the tone of the correspondence from the applicant’s representative and indicated that it was inappropriate and would need to be addressed should the first Application proceed further. I made Directions requiring the applicant to indicate his intentions with respect to the Application. I also directed that if the applicant intended to proceed further with the Application, he must comply with my prior Directions on production of documents.
8Nothing further was heard from the applicant. Accordingly, in a decision dated March 5, 2012, I determined that the applicant had no intention of proceeding further with the Application and it was dismissed as abandoned.
The respondent's Request
9The respondent states that it is an abuse of the Tribunal process to bring this Application in the circumstances. The respondent argues that the Application raises the same issues as were raised in the first Application. The respondent argues that the abandonment of the first Application and the filing of this Application is an attempt to avoid compliance with the Tribunal’s Orders on the production issues raised in the first Application. Alternatively, the respondent states that the Application is out of time having been filed more than two years after the incident complained of – the alleged failure to accommodate the applicant when the employer required that he transfer work positions in March 2009. The respondent states that there are no allegations after that date other than an allegation that the applicant was forced to retire as a result of the failed accommodation.
10The respondent also argues that I should consider the conduct of the applicant by his representative who in his communications has been disrespectful of the respondent’s counsel and the Tribunal in a way that has attracted sanction by the Tribunal. The respondent relies on the Tribunal’s Decision in Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667.
11The applicant takes a number of positions. The applicant argues that section 45.1 of the Code does not apply to these circumstances as there was no decision on the merits of the first Application. The applicant also argues that the current Application “does not deal with any time period covered by any other Application and while some initial facts and some of the evidence may be similar in scope,” the current Application deals with different instances of discrimination and wholly new allegations.
12The applicant argues that the first Application filed on April 9, 2010 dealt with events in the one year prior to that date including the applicant’s remedial claim to be returned to his prior position. The applicant states that as a result of the delay in processing the first Application, the remedial claim “disappeared”. The applicant then argues, that as a consequence of the remedial claim disappearing due to delay, the first Application was abandoned as found by the Tribunal. The applicant then argues that he is not seeking any remedy for any allegation of discrimination in the time period covered by the first Application. However the applicant also appears to be arguing that the prior allegations and the medical information provided will be relied upon to show that the respondent was aware of the accommodations required by the applicant “prior to the commencement of the ongoing incidents of discrimination under this Application.”
13When asked by me what new allegations the applicant was raising, the applicant confirmed what appeared from the Application itself:
a. That he retired in November 2011 due to the failure to accommodate his disabilities;
b. Since retiring the applicant has had to live on a reduced pension, without benefits
14The applicant states that none of the above was known at the time of the first Application. The applicant also states that the Tribunal would not have had jurisdiction to hear the evidence of his need to retire, and his consequent losses, and to adjudicate on those issues. The applicant also states that he will have to file a new Application each year to deal with the ongoing discrimination until such time as it is addressed by the respondent.
15The applicant argues that his issues no longer relate to his return to his prior work location or any kind of return to work. The remedy the applicant is seeking now is to be made whole for the shortfall in entitlements of various kinds since his retirement date. In the applicant’s view, these issues had not arisen when the first Application was filed. The applicant also states that first Application gave notice of these issues to the respondent and of the problem that subsequently arose since the respondent had not fulfilled its procedural and substantive duties to accommodate. The applicant states in this regard that no review or investigation of the applicant’s needs was ever done in a competent person employed of the respondent.
Analysis
16This Application must be dismissed as it is both an abuse of process and is untimely.
17Section 23(1) of the Statutory Powers Procedure Act. R.S.O. 1990 c. S. 22 as amended provides as follows:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
18Rule 1.7 (v.1) of the Tribunal’s Rules of Procedure authorizes the Tribunal:
To make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal are courteous and respectful of the Tribunal and other participants.
19One of the circumstances where the Tribunal has concluded that an Application should be dismissed as an abuse of process is where it appears that the applicant is seeking to re-litigate a dispute that has been previously raised and dealt with.
20There is no dispute that this Application raises essentially the same issues as were raised in the first Application. The only new element raised in this new Application is what the applicant alleges are the consequences of a decision that was made in March 2009 – a transfer of work location that the applicant believes was in contravention of his need for accommodation. I asked the applicant what his new allegations were and it was clear that there were no new incidents of alleged discrimination, but rather, alleged effects of an allegedly discriminatory decision made more than two years prior to the applicant’s decision to retire.
21There is a distinction that must be made between ongoing discriminatory behaviour and the ongoing effect of a discriminatory action or decision for the purposes of establishing a claim under the Code. The applicant is confusing the difference between the consequence of alleged discrimination and whether or not the act complained of was discriminatory. It is clear, based on the applicant’s own submissions, that the issue to be determined in this new Application is whether or not the respondent failed to properly accommodate the applicant to the point of undue hardship when it decided to transfer him from his then current work location in 2009. Without a decision on that point there will be no basis to conclude that a remedy is appropriate. To put it another way, the decision of the applicant to retire is not a violation of the Code. It may be, as suggested by the applicant, that he had no choice because of the failure to accommodate him. And if it were concluded that the respondent had violated the Code in 2009 he may be entitled to a remedy as a consequence. However, in order to determine whether the applicant is entitled to a remedy for this allegedly forced retirement there must first be a determination that the Code was violated in a way that forced this choice on him.
22This is the issue raised in the first Application which was dismissed as abandoned in my Decision issued on March 5, 2012. The only new issue raised in this application is the confirmation of what the applicant had suggested would happen in the first Application, that he would be forced to retire due to the failure to accommodate.
23In my view this Application is simply an attempt to revive the first Application which the applicant withdrew and as such is an abuse of process.
24As regards the respondent’s concern with the manner in which the applicant communicated with it and the Tribunal, while I agree that the applicant’s representative was at times disrespectful of the respondent and the Tribunal I do not find that this mis-conduct would not justify the extra-ordinary remedy of a dismissal of the Application.
Delay
25Sections 34(1) and (2) of the Code provide:
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.
26This Application is out of time. It was filed on July 6, 2012 and relates to an alleged failure to accommodate in March 2009.
27The Tribunal has interpreted these provisions of the Code as requiring that 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. The provision has been found to be mandatory subject to section 34(2) of the Code. The 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. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241)
28Given this extensive delay it is incumbent on the applicant to meet the requirements of s. 34(2) - provide a good faith explanation for the delay and establish that there will be no substantial prejudice to any party. (See Farwell v. Northumberland Services for Women, 2010 HRTO 1126)
29Although the applicant states that it is not concerned with the issues raised in the spring of 2009, obviously that is not the case. The essential claim made in this Application is that the respondent did not accommodate the applicant to the point of undue hardship in the spring 2009. The rest of the claim relates only to the alleged ongoing consequence of that decision and, of course, the remedies for it.
30The applicant offered no good faith explanation for the delay, however the explanation for the delay is plain on the face of the record. The applicant raised the same allegations in the first Application. However, when faced with a production order he did not wish to comply with, the applicant abandoned the first Application and it was dismissed as abandoned. This is not a good faith explanation for the delay. Having determined that there is no good faith explanation for the delay there is no need to consider whether or not there would be any substantial prejudice to any party.
31For all of these reasons the Application is dismissed.
Dated at Toronto, this 19th day of April, 2013.
”signed by”
David Muir
Vice-chair