Daniela Stor v. Randstad Holding N.V., 2014 HRTO 1097

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniela Stor

Applicant

-and-

Randstad Holding N.V.

Respondent

DECISION

Adjudicator: Mary Truemner

Date: July 25, 2014

Citation: 2014 HRTO 1097

Indexed as: Stor v. Randstad Holding N.V.

APPEARANCES

Daniela Stor, Applicant

Joseph H. Kary, Counsel

Randstad Holding N.V., Respondent

Kate McNeill-Kellar, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability (gluten allergy) contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application was filed on June 24, 2013, and indicates that the last date of discrimination was October 17, 2011.

2The respondent filed a request that the Application be dismissed as untimely because it was filed more than a year after the alleged discrimination. The Tribunal directed that a teleconference hearing be scheduled to deal with the request, stating that no witnesses would give evidence, but inviting the parties to provide documentary evidence relevant to the delay issue (such as a Record of Employment, and any documents addressing how the respondent's predecessor, a company called "Spherion", assigned work to the applicant).

3Part of the Application refers to the respondent's duty to accommodate her "perceived disability". Without deciding whether the applicant was a person with a disability at the time of the alleged violation, and without deciding whether the respondent had any duty to accommodate a disability, for the reasons that follow, I find that this Application must be dismissed because it is out of time.

background

4The applicant has described her work history related to this Application as follows:

• She used an employment agency to find her work from 2007 until 2011. The employment agency, Spherion, usually placed the applicant with Nestle Canada Inc. ("Nestle") to work in stints at one of its factories, although the employment agency placed her at least once with another company for a stint when Nestle was slow. Generally speaking, when a stint at Nestle was completed, Spherion would issue a Record of Employment ("ROE") for the applicant, and then place her again to work there when she was needed. The applicant worked approximately half of each year through Spherion placements, most of which were at Nestle.
• The applicant has a gluten allergy. While cleaning out wafer trays in 2011, she noticed she had an allergic reaction, and alerted Nestle's management to her allergy. As a result, she sometimes wore a mask or was assigned duties that did not require her to wear a mask, and she understood at the time that her allergy was not a problem for her continued employment with Nestle.
• The applicant did not receive work from Spherion in the summer of 2011 at Nestle which she thought was normal because she did not usually have work at Nestle during the summertime.
• By October 2011, the applicant was becoming concerned that she was not being placed at Nestle, and she telephoned her regular recruiter at Spherion who told her that there was nothing for her at Nestle. On October 17 2011, Spherion issued the applicant an ROE which the applicant claims indicated, "employee stated she was allergic to client's products and could not complete assignment." This was the first time that the applicant learned that Nestle did not want her to work at their factory because of her gluten allergy. The applicant told her regular recruiter that she thought this was discriminatory, and her regular recruiter said that her name would be kept on file and that Spherion would send her to other placements. The applicant points to this point in time as when a duty to accommodate disability arose for Spherion and thus the respondent.
• In December 2011, the applicant's father died and she was grief-stricken.
• The applicant did not communicate again with anyone from Spherion or the respondent until filing her Application on June 24, 2013.

5It appears that Spherion amalgamated with other corporate entities, and was acquired by the respondent at the end of December 2011 at which time Spherion ceased to operate and the applicant's regular recruiter lost her job. The respondent takes the position that it cannot find evidence with respect to the applicant because documents were not transferred to it from Spherion, and that even if they were able to locate the applicant's recruiter from Spherion, it is unlikely that she would be able to remember facts relevant to the applicant's case. At the teleconference hearing dealing with the respondent's request to dismiss the Application as untimely, the respondent therefore had no documents specifically relevant to the applicant's situation and delay. While the applicant did not understand that she was required to regularly check with Spherion about available work, the respondent asserted that Spherion's policy was that people it placed were to contact it regularly to check on whether there was work available. At the time of amalgamation in December 2011, the respondent did not merge inactive temporary employee files into the computer program that it used to track clients and temporary employees, and after one year of inactivity after the amalgamation, the temporary employee files were not retained.

delay

6Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident, or the last incident in a series of incidents, of alleged discrimination. Section 34(1) of the Code provides 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.

7Subsection (1) provides that a person may apply 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.

Whether the Application Was Filed Within One Year After the Last Incident

8The applicant argued that after she spoke with her recruiter and received the ROE in October 2011, she understood that Spherion was going to accommodate her disability or perceived disability by finding her a placement with a client other than Nestle. She argued that the respondent assumed a duty to accommodate her and the duty was ongoing. At no time did Spherion or the respondent communicate that it would not offer her a placement. She waited patiently, and was not surprised when she was not offered a placement for "the Christmas season" in December 2011 because she had never received work during "the Christmas season" at Nestle. She argued that it was reasonable that she would not have "discovered" until sometime in June 2012 that she was not going to be accommodated. The applicant argued that it was not until June 2012 that a long enough time had passed, and enough cycles of what she might guess are work seasons for Spherion's clients, that she realized that the respondent was failing to accommodate her disability. She argues, therefore, that her Application is timely because it was filed on June 24, 2013, one year after when she argues she came to the reasonable realization she was not being accommodated. I cannot agree.

9By October 2011, the applicant understood that Spherion was no longer going to place her at Nestle, and that Spherion would look to other clients for a placement for her. She said that she worked approximately six months per year, but by June 2012, she would have been without a placement since May of 2011. By June 25, 2012, one year before the applicant filed the Application, the applicant had been more than a year without being found a placement by Spherion or the respondent. By the time she filed her Application, she had been over 2 years without being placed anywhere by them.

10The respondent stated that it sent an email to all employees on December 21, 2011, advising them that it had acquired Spherion and could provide a greater selection of career opportunities, but the applicant could not confirm whether she had received this generic announcement. Subsequent to the October 2011 conversation with her recruiter, the applicant had no communication from Spherion or the respondent to encourage her belief that her recruiter was attempting to fulfill any duty to accommodate her needs arising from any disability under the Code, and neither Spherion nor the respondent offered her any placement. This lack of communication from Spherion or the respondent is consistent with the respondent's assertion that the applicant's recruiter lost her employment in December 2011. Even if the applicant had understood that the Nestle factory was Spherion or the respondent's largest client, she also understood that she was going to receive another location as an accommodation, and she pointed to nothing which would reasonably have led her to believe that another placement would not be offered in the Fall of 2011, the Winter of 2011/12 or the Spring of 2012.

11I agree with the applicant that some time would reasonably have needed to pass, from the date of the October 2011 discussion with her recruiter, before the applicant should have realized that Spherion failed in any duty to accommodate that it might have had. Spherion did not refuse to accommodate the applicant in the October 2011 discussion, or say anything that might be construed as a violation of the Code. To the contrary, Spherion agreed to find the applicant alternative work; however, when no offers were made to the applicant after the allegedly dormant "Christmas season" of 2011 and then throughout the Spring of 2012, the applicant ought to have known that any accommodation arguably required was not forthcoming. Given the pattern of her employment where the applicant worked half the year through Spherion placements, the applicant ought to have known, at the latest, after six months had passed since the October 2011 discussion, that Spherion or its successor (the respondent) failed in any duty to accommodate and therefore violated the Code. For her Application to be timely, then, it should have been filed on some date in April 2013. It was filed in June 2013, and the Application is therefore out of time.

12I cannot agree with the applicant's argument that the respondent's failure to accommodate is ongoing and therefore the Code's one year limitation period has not been triggered. While the respondent did not explicitly refuse to accommodate the applicant, the applicant ought to have understood by April 2012, in the circumstances, that its silence amounted to a refusal. At that point, the Code's one year limitation period was triggered. Allowing an application as timely where an applicant knew or ought reasonably to have known in the circumstances that the respondent failed in a duty to accommodate, but subsequently sat back, not engaging further with a respondent for years, would lead to absurd results.

Whether the Delay Was Incurred In Good Faith

13If an application is filed beyond the one-year limitation period, based on section 34(2) of the Code, the Tribunal must be satisfied that (a) the delay was incurred in good faith and, if so, (b) no substantial prejudice will result to any person affected by the delay.

14In considering whether the delay was incurred in good faith, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. An applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. As noted in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, to establish the delay was incurred in good faith, the applicant must show something more than simply an absence of bad faith.

15The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay: Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code's objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence.

16In 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 v. Rouge Valley Health System, 2012 HRTO 2173, 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....

17In the present case, the applicant relies on the death of her father in December 2011 as the main reason in support of her assertion that the delay in filing the Application was incurred in good faith. She argues that she was grief-stricken, but did not point to any evidence, medical or otherwise, to establish that her grief made her unable to inquire about her legal rights or file a form at the Tribunal by April 2013 when she was obviously able to do so in June 2013.

18I am not satisfied that the applicant has established that her grief-stricken condition was so debilitating that it prevented her from filing a timely application with the Tribunal throughout the one-year period following when she ought to have realized Spherion and the respondent were not providing any placement.

19In the circumstances, particularly given that the applicant's father died approximately 16 months before the date the Application should have been filed to be timely, I am not satisfied that the applicant's condition provides a reasonable explanation establishing that the delay in filing the Application was incurred in good faith.

20It is not necessary for the Tribunal to consider the issue of substantial prejudice where an applicant has failed to meet the good faith criteria: Esanu v. Georgetown Men's Non-Contact Hockey League, 2009 HRTO 579.

21The Application is dismissed.