Lawrence v. Co-operators Life Insurance Company, 2014 HRTO 1490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther Lawrence

Applicant

-and-

Co-operators Life Insurance Company

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: October 7, 2014

Citation: 2014 HRTO 1490

Indexed as: Lawrence v. Co-operators Life Insurance Company

APPEARANCES

Esther Lawrence, Applicant

Melvin Rotman, Counsel

Co-operators Life Insurance Company, Respondent

Karen Jensen, Counsel

Introduction

1This Application, filed on September 28, 2012, alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The allegations concern the denial of Long Term Disability (“LTD”) benefits by the respondent.

BACKGROUND

2The applicant is a former employee of Supportive Housing in Peel (“SHIP”). Her last date of employment was March 3, 2009.

3The applicant applied for LTD benefits with the respondent on March 27, 2010. The LTD benefits were denied by the respondent on April 16, 2010 for two reasons: one, the application for benefits was out of time; and two, the medical evidence did not support the applicant’s entitlement to LTD benefits.

4The applicant appealed the denial of LTD benefits on November 2, 2010. The respondent refused to consider the appeal because its denial decision was based on the contractual terms of the LTD policy regarding the timelines for filing an application for benefits.

5In February 2011, the applicant’s union asked the respondent to reconsider its denial decision because the applicant had been notionally reinstated to her position with SHIP as of March 3, 2009. On March 3, 2011, the respondent advised the applicant that her reinstatement did not change her disability date: the date upon which the timelines for filing an LTD application commenced.

6The applicant filed her Application with the Tribunal on September 28, 2012 against SHIP and the respondent.

7On December 21, 2012, the Tribunal deferred the Application pending completion of a union grievance involving the applicant and SHIP.

8On July 29, 2013, the applicant requested leave to withdraw her complaint against SHIP. On August 9, 2013, the Tribunal confirmed the Application was withdrawn against SHIP.

9By interim decision dated December 4, 2013, the Tribunal reactivated the Application.

10By Case Assessment Direction dated January 21, 2014, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed as having no reasonable prospect of success.

11The summary hearing was conducted by teleconference on June 12, 2014.

12During the summary hearing, I raised with the parties whether the Tribunal had jurisdiction because the Application was filed out of time. Counsel for the applicant advised the Tribunal that the applicant was unable to file a timely Application because of her mental health. I gave the applicant time to file medical documents to support this submission and the respondent the opportunity to respond.

13I also heard the parties’ submissions on whether the Application had no reasonable prospect of success at the summary hearing.

ANALYSIS

Delay

14Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events.

15The applicant’s application for LTD benefits was denied by the respondent on April 16, 2010. It was denied again on March 3, 2011, after the applicant’s reinstatement. The applicant filed her Application with the Tribunal on September 28, 2012. The Application is outside of the one-year time limit under section 34(1) of the Code.

16Under section 34(2) of the Code, the Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for her failure to pursue her rights under the Code in a timely manner.

17During the summary hearing, the applicant’s counsel advised the applicant was unable to file her Application in time because of her mental health. He filed medical information to support this submission.

18The medical information filed included a doctor’s note that stated the applicant was mentally challenged from March 2008 to October 2011, and was medically incapable of applying to the Tribunal for her alleged wrongful dismissal from work during that time frame. The respondent disputes the accuracy of this note, in part, because the applicant was at work from March 2008 to March 2009.

19The fact that the applicant was working during some of the time that her doctor asserted she was medically incapable undermines the doctor’s conclusion that she was unable to file her Application with the Tribunal. The other difficulty with the doctor’s conclusion is the fact that the applicant was pursuing other avenues during this period. The applicant, by her own hand, appealed the denial of LTD benefits on November 2, 2010. She was also involved in a grievance against SHIP in 2011. In February 2011, the applicant’s union asked the respondent to re-examine the applicant’s entitlement to LTD after her reinstatement. The respondent denied the request on March 3, 2011. The applicant’s mental health did not prevent her from pursuing these alternative avenues of redress.

20In considering medical reasons for 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. In Todd v. Rouge Valley Health System, 2012 HRTO 2173, the Tribunal stated at paragraphs 12 and 13:

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, 2010 HRTO 1360.

21The medical evidence provided by the applicant confirms that she was diagnosed with a mental health issue and hospitalized in July and September 2010. However, there is no medical information as to why the applicant was unable to file the Application during the balance of the one-year time period. The time period would have ended on April 16, 2011 (for the first denial decision), or possibly March 3, 2012 (for the second decision refusing to reconsider the first decision). Further, there is no information as to why the applicant was unable to file her Application until September 2012. While the applicant provided medical documents concerning a complaint of involuntary movement of her eyes and mouth in July 2011, there is no information as to how this medical condition prevented her from filing her Application.

22If the applicant was able to pursue a LTD appeal and a grievance during the one-year period, she should have been able to file her Application with the Tribunal. As such, I do not find that the applicant has established a good faith reason for her delay in filing her Application. In light of this finding, it is not necessary to decide the issue of prejudice to the respondent.

23For these reasons, the applicant has failed to establish a good faith explanation for her delay in filing the Application. As such, the Application is out of time and the Tribunal has no jurisdiction to hear it.

24Even if the Tribunal had jurisdiction over the Application, it would have been dismissed as having no reasonable prospect of success. It is clear from the narrative of the Application, that the applicant is dissatisfied with the respondent’s decision to deny her claim for LTD benefits because it was filed outside of the timelines set out in the LTD Policy. An application related to a denial of benefits will be dismissed if there is no allegation of discrimination under the Code. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5, the Tribunal stated:

This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success…

25There are no allegations of discrimination in the Application other than the claim that LTD benefits were denied.

26The Application is dismissed as being outside of the Tribunal’s jurisdiction.

ORDER

27The Application is dismissed.