Collins v. Shoppers Drug Mart Inc. / Shoppers Home Health Care, 2014 HRTO 1627

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosetta Collins

Applicant

-and-

Shoppers Drug Mart Inc. /Shoppers Home Health Care, Shoppers Home Health Care #8497 and Carmen Warriner

Respondents

DECISION

Adjudicator: Yola Grant

Date: November 5, 2014

Citation: 2014 HRTO 1627

Indexed as: Collins v. Shoppers Drug Mart Inc. / Shoppers Home Health Care

WRITTEN SUBMISSIONS

Rosetta Collins, Applicant

Peter Doucet, Counsel

Shoppers Drug Mart Inc., Respondent

No submissions requested

Introduction

1This Application 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”).

2It appears that some of the allegations may be untimely. Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:

(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.

3In order to satisfy the Tribunal that a delay was incurred in good faith, 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. As stated in Miller v. Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 to file an application within one year when pursuing a human rights claim.

Submissions

4By letter dated August 25, 2013 from the Tribunal’s Registrar to the applicant, the applicant was advised that “it appears the Application is outside the HRTO’s jurisdiction because the Application was filed more than one year after the last incident of discrimination …” The applicant was invited to provide submissions and did so through her counsel by letter dated September 26, 2014. Counsel’s submission regarding good faith delay reads in part as follows:

“[The Applicant] previously found that she could not deal with the stresses of the Application and thought that she could perhaps better manage and control the stressors of proceeding with an Action for damages as opposed to the lengthier Human Rights Process. That, however, proved to be too much for her to bear from a personal and financial point of view…”

5The Application alleges that around July 13, 2009 a District Manager of the respondent employer, Shoppers Drug Mart (a Timmins location) made a comment that left her feeling humiliated, degraded, disrespected, belittled and embarrassed. She linked this comment to her visible disability. Starting around July 15, 2009 the applicant did not return to her employment that commenced some time in 2008. She formally resigned on August 21, 2009 when she believed that it was clear that she would not be accommodated or welcomed back into the workplace. Subsequent to her resignation, the applicant attended college (2009-2010) and obtained a Certificate in Office Administration (May 2010) and worked in various establishments from 2011 to the time of filing the instant Application on July 25, 2014.

Findings

6I find that the applicant was filed beyond the one year time limit set out in s. 34(1). In my view, the date from which the one year time limit began to run in this case is August 21, 2009. That is the date on which she relinquished her employment and any hope that the employer would address her accommodation needs. I note that the applicant filed the Application more than five years after the final incident that gave rise to her allegation of a Code violation.

7In my view, the fact that the applicant was capable of attending and succeeding in her certificate course is a factor that may be taken into account in assessing the existence of “good faith” reasons for the delay under s. 34(2) of the Code. So too is the fact that she was capable of obtaining multiple offers of employment before she filed the instant Application. The applicant has not made a claim that her capacity to attend to the instant matter was impaired by any disability supported by medical evidence. In these circumstances, I cannot find that the applicant has discharged her onus to establish that her five-year delay was incurred in good faith.

order

8For the above reasons, the Application is dismissed.