Daniel William Colborne v. Peninsula Ford Lincoln, 2014 HRTO 1371

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel William Colborne

Applicant

-and-

Peninsula Ford Lincoln

Respondent

DECISION

Adjudicator: Kevin Cleghorn

Date: September 16, 2014

Citation: 2014 HRTO 1371

Indexed as: Colborne v. Peninsula Ford Lincoln

APPEARANCES

) Danie William Colborne, Applicant ) Andrew Kerr, Counsel ) )

1This is an Application under section 34 of Part IV 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. The applicant claims that the respondent failed to accommodate him for his disability by requiring him to perform tasks that were unsafe and/or which aggravated existing physical injuries.

2In a Case Assessment Direction (“CAD”) dated April 23, 2014, this Tribunal directed that a full day in-person hearing be conducted to consider the issue of whether there is jurisdiction for the Tribunal to consider this application. It appears that the last incident or event complained of in the application occurred prior to January 15, 2013. The Application was filed on January 15, 2014. The respondent chose not to attend the hearing but did file written submissions in support of its position that the application should be dismissed for lack of jurisdiction due to delay.

3If the last incident occurred prior to January 15, 2013, the Application can proceed only if I am satisfied that the delay was incurred in good faith and no substantial prejudice will result to any party affected by the delay pursuant to section 34 (2) of the Code.

Background

4The applicant was an employee of the respondent. He has a grade eleven education and advises that he has significant difficulty with reading and writing. He was involved in a serious snowmobile accident on January 17, 1998 that resulted in multiple bone fractures and years of rehabilitation. Exhibit one filed at the hearing was a Vocational Assessment Report prepared by Dr. Jonathan E. Seigel, a psychologist, dated August 26, 1998 in the aftermath of that accident. It has been filed over the written objection of the respondent. I have admitted the document but assign limited weight to the report due to its age. I have considered it exclusively in the context of corroborating the evidence of the applicant himself in terms of his intellectual and physical limitations. His physical limitations and functioning are relevant to the Application as whole and will not be considered in depth during this stage of the proceeding. In short, the applicant claims significant issues with learning generally.

5He was employed with the respondent as a lot attendant from 1999 to October, 2012. He left the employ of the respondent at that time due to significant pain from performing tasks that were beyond his physical ability after the snowmobile accident. The applicant went on sick benefits and pursued a claim through the Workplace Safety and Insurance Board (“WSIB”). The applicant had never heard of the Human Rights Tribunal of Ontario (“HRTO”) and was unfamiliar with his rights under the Code. He applied to WSIB on August 20, 2013 for benefits. In September, 2013 his WSIB adjudicator, Chris Wiederman, suggested that he might have a human rights complaint. The applicant’s wife discouraged him from pursuing a human rights claim on the basis that the respondent was “well connected”. He contacted the Human Rights Legal Support Centre (“HRLSC”). He was informed by Ziad Akl, a human rights representative with HRLSC, that there was a one year limitation on advancing human rights claims under the Code. The applicant assumed that he had made a human rights application by contacting HRLSC. He believed that HRLSC and HRTO were one and the same. Mr Akl advised him that he needed to see a lawyer.

6The applicant talked to a lawyer from Collingwood initially. He then saw Andrew Kerr, his current counsel, on December 13, 2013. He still believed that he had filed his complaint with HRTO. All throughout the period of late summer of 2013 into early 2014 the applicant was dealing with considerable pain and ingested a variety of medication. He indicates that the pills he was taking in fall of 2013 made him “quite blurry”. His mother had worked for a lawyer but no one had ever advised him to see a lawyer about his human rights issue until Mr. Akl gave such advice in or about November, 2013. After he left the employ of the respondent, he claims that the medication affected his thinking ability. Exhibit two filed at the hearing was the Worker’s Report of Injury filed by the applicant in support of his WSIB claim on August 20, 2013. That report, prepared by the applicant himself, does note that the applicant was in considerable physical pain and was taking “14 pain killers a day”. It does not mention any impairment in his thinking ability. It does mention that he was willing to learn computer skills to become familiar with health and safety matters but that the respondent “never bothered to teach (him)”. No mention is made of his learning disability in exhibit two.

7Ziad Akl testified on behalf of the applicant. He indicated that the applicant contacted the intake department of the HRLSC on September 18, 2013. The applicant had sent in a pre-application intake form by e-mail. A telephone intake appointment was scheduled as between Mr. Akl and the applicant on November 4, 2013. The intake appointment was delayed and they never actually spoke until November 14, 2013. The applicant was advised that he was out of time to file his Application. Mr. Akl contacted the applicant again by telephone several times and e-mailed him on November 22, 2013, with a recommended follow-up date of November 25, 2013. The applicant was warned a further time about the limitation period under the Code. Mr. Akl made it clear to the applicant that HRLSC was not HRTO. Despite the suggestion that they should talk again on November 25, 2013, the applicant did not contact Mr. Akl until January 17, 2014 at which time he advised Mr. Akl that he had retained counsel. The preliminary discussions prior to November, 2013 had been about general procedures. Information about a limitation period problem was not given to the applicant until November 14, 2013.

The Law

8Section 34 of the Code reads 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.

Late applications

(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.

The applicant does not dispute that his Application fails to meet the one year requirement set out in section 34(1). He relies on section 34(2) submitting that the delay in filing his Application was incurred in good faith.

9In Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241, the Tribunal sets out what is required to establish that delay has been incurred “in good faith”:

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. (at paragraph 24)

10There is a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241 and Low v. Hanley Corporation (Tim Horton’s) 2011 HRTO 1012. The one-year limitation period is designed to ensure that human rights claims are dealt with fairly and expeditiously. It is incumbent on any person bringing a human rights claim to act with dispatch, bearing in mind that one year is a significant time frame within which to contemplate exercising one’s rights under the Code.

11The delay in filing this Application was three months beyond the limitation period. The Tribunal’s jurisprudence establishes that, notwithstanding that the delay may be relatively brief, the onus remains on the applicant to demonstrate that the delay in filing the Application was in good faith. It is unreasonable for the applicant to rely upon assumptions that HRLSC is HRTO in the face of Mr. Akl’s clear statements to the contrary. There seems to have been no urgency on the part of the applicant to pursue his rights under the Code when a further two months elapsed from the date the warning was given by Mr. Akl about the limitation period and the actual filing of the Application with this Tribunal. I cannot find that the applicant acted with any sense of urgency even in the face of the clear directive from Mr. Akl that he needed to file his Application immediately. It is not good faith to have the expectation that any body such as HRLSC can act immediately in the face of considerable pressures on its resources. In other words, any party must act diligently to pursue their rights under the Code, which may include seeking counsel or the assistance of HRLSC well in advance of the limitation period of one year. This Tribunal has held that a delay of as little as five days beyond the one year limitation period can be too much unless good faith can be shown: see Low, above, at paragraph eight.

12To substantiate that the delay was in good faith, the applicant submitted a Vocational Assessment Report from the summer of 1998. The applicant states that the report supports his claim that his learning disability affected his ability to be aware of his rights under the Code. To that end, he is effectively advancing a more sophisticated argument that there was a basis for his ignorance of the law.

13This Tribunal has held consistently that a lack of knowledge of the law does not constitute good faith within the meaning of s. 34 (2). See, for example, Lutz v. Toronto (City), 2009 HRTO 1137; Winston v. University Health Network, 2011 HRTO 1648 and Hunter v. Thompson Electric Ltd. 2013 HRTO 2118. There is a positive onus on individuals to actively pursue information about their rights, unless there is a good faith reason which prevents that from happening.

14In Dionne v. Toronto (City), 2011 HRTO 317 this Tribunal accepted that a delay may be in good faith where it emanates from an applicant’s disability. But, in that event, medical evidence must be provided to illustrate that the disability was such that it prevented 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; Savage v.Toronto Transit Commission, 2010 HRTO 1360 and Low, above.

15I do not find the Vocational Assessment Report constitutes persuasive evidence that the applicant’s condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion, particularly given the applicant’s pursuit of his sick benefits and WSIB claim. The applicant clearly had some knowledge about his rights in relation to an injury that he suggests arose in the workplace. However, he has provided no reason for why he could not have made similar enquiries about his rights under the Code, save and except that he was not aware of the Code. Although not unsympathetic to the applicant’s plight, the pain he was experiencing and the medication he was ingesting did not prevent him from making his WSIB claim. It should not have prevented him from similarly pursuing his rights under the Code.

16Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. While the applicant may well have a learning disability and pain issues, he has not established that he could not have pursued his rights within the timeline mandated by the Code.

17I am satisfied that on a balance of probabilities the applicant has failed to establish that the delay in filing of the Application was incurred in good faith, within the meaning of the Tribunal’s jurisprudence. Having found that there is no good faith explanation for the delay there is no need to determine whether the respondent would be significantly prejudiced by the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident described in the Application and the delay was not incurred in good faith.

DECISION

18For all the foregoing reasons, the Application is hereby dismissed.