Junkin v. Liza Home/Communities, 2013 HRTO 98

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Junkin

Applicant

-and-

Liza Home/Communities

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 18, 2013

Citation: 2013 HRTO 98

Indexed as: Junkin v. Liza Home/Communities

APPEARANCES

Alan Junkin, Applicant

Bruce Best, Counsel

Liza Home/Communities, Respondent

Azim Azimi, Representative

Introduction

1This Interim Decision deals with whether this Application should be dismissed as untimely. It also addresses a request by the respondent to have the Application dismissed as an abuse of process, and a request by the applicant to name other companies as respondents to the Application.

background

2On May 8, 2012 the applicant 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 a disability.

3The applicant alleges that from March of 1994 until August 18, 2010 he worked as a site manager for the respondent, which is a construction company. He states that he was diagnosed with cancer in January of 2010 and was off work from then until March of 2010.

4In August of 2010 the applicant alleges that he was laid off work. The respondent issued a Record of Employment which indicates a layoff for shortage of work, with an expected date of recall as “unknown”.

5On September 16, 2010 the applicant met with employees of the respondent and signed a document entitled “Acknowledgement and Release”. The parties dispute the meaning of this document. The respondent maintains that this was an agreement to terminate the applicant’s employment. The applicant maintains that it pertains to an agreement that he be paid while on lay-off and that he expected to be called back to work when the respondent’s business picked up. He maintains that when he went to one of the respondent’s work sites on July 24, 2011, he was told by a construction manager that he had been permanently replaced, and that his illness had been a factor in the decision to not call him back.

6The applicant alleges that upon being advised of this he filed an Application with the Tribunal on the following day, July 25, 2011, but that it was lost in the mail. He then filed this Application on May 8, 2012.

7In its Response, the respondent requests that the Application be dismissed on the grounds that the applicant had signed a full and final release with respect to the same subject matter. A preliminary hearing was scheduled by teleconference on October 24, 2012 to deal with this issue.

8Due to a logistical error on the Tribunal’s part, the respondent did not call in to the teleconference hearing. In the interests of fairness the hearing was rescheduled to December 18, 2012.

Timeliness of the 2010 allegations

9The relevant portions of the Code read as follows:

s.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.

10The applicant maintains that the allegations relating to events in August and September of 2010 were addressed in the Application he filed on July 25, 2011, but which was never received by the Tribunal. He claims that the Application was sent by registered mail and was received at a government mail facility on July 28. In support of this he points to the Canada Post documents which he appended to the Application. These are date stamped July 25, 2011.

11Counsel for the applicant advised that Canada Post had advised him orally that registered mail tracking documents do not show the names of the sender or receiver, but that the respective postal codes of the sender and receiver for the document sent on July 25 were those of the applicant and the Tribunal. He indicated that Canada Post would not provide him with written confirmation of this. Counsel’s account is not evidence, but the respondent did not contest the account and indicated that it took no position on whether the applicant had sent an Application to the Tribunal on July 25, 2011. Furthermore, I am satisfied that in providing this information about Canada Post’s practice counsel was aware and respectful of his ethical obligation to provide accurate information to the Tribunal.

12I accept that the applicant mailed an Application to the Tribunal in a timely manner, and that it was lost in the mail. My decision is based on the evidence that the applicant mailed a package by registered mail on July 25, 2011, the unchallenged information that the postal codes of sender and receiver were those of the applicant and the Tribunal and the fact that the respondent takes no position on the issue of delay. In the particular circumstances of this case, I find that the loss of the Application was beyond the applicant’s control and that the resulting delay was incurred in good faith. Given that the respondent takes no position on this issue, I am satisfied that the respondent would not be substantially prejudiced by allowing the allegations surrounding events in August and September of 2010 to go forward.

Abuse of process

13The respondent argues that when the applicant signed the “Acknowledgement and Release” on September 16, 2010, this amounted to a binding agreement to terminate the applicant’s employment in exchange for a payment. It maintains that this was a settlement that precludes the applicant from filing an Application in relation to any alleged Code violation. Implicit in this argument is a contention that allowing this Application to proceed would amount to an abuse of process.

14The applicant advances various arguments in response to this. He maintains that there was no agreement on the termination of his employment and that the document was an agreement that he be paid an amount while on lay-off. In the alternative, he argues that he signed the document under duress, as he alleges he was vulnerable at the time due to his illness and that the respondent exploited this vulnerability.

15In order to determine this issue, a one-day preliminary hearing will be scheduled in person. The sole purpose of the hearing will be to deal with the request by the respondent to have the Application dismissed on the ground that the “Acknowledgement and Release” document is a full settlement of some or all of the issues in this Application. The parties should be prepared to call oral evidence about the circumstances surrounding the signing of the release document. The parties are directed to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon in relation to the issue of the release no later than two weeks prior to the hearing.

Adding respondents to the Application

16At the hearing, counsel for the applicant asked that the following companies be added as respondents to the Application: The Mansouri Group Inc., Milltree Developments Inc. and 100690 Ontario Inc.

17As this was raised orally, neither the current respondent nor the proposed respondents have been given proper notice of this issue and a full opportunity to respond. If the applicant wishes to pursue this, he needs to make a Request for Order During Proceedings in accordance with the Tribunal’s Rules of Procedure and ensure that it is delivered to the current and proposed respondents together with the materials in the Application. Any such request should be delivered and filed within two weeks of today’s date.

ORDER

18The Tribunal makes the following orders:

1. The respondent’s request that the Application be dismissed as untimely is dismissed.

2. The Registrar is requested to schedule a one-day preliminary hearing, at which the Tribunal will hear evidence and argument on whether the Application should be dismissed as an abuse of process as a result of the document signed by the applicant on September 16, 2010.

3. Each party shall file a list of witnesses, witness statements setting out the intended evidence of each witness, and any documents they intend to rely upon with regard to the preliminary issue no later than two weeks prior to the hearing.

4. If the applicant seeks to add further respondents, he must deliver to the current and proposed respondents and file with the Tribunal a Request for Order During Proceedings no later than two weeks from the date of this Interim Decision.