Groh v. Waterloo (Regional Municipality), 2014 HRTO 1774

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Groh Applicant

-and-

Regional Municipality of Waterloo and Canadian Union of Public Employees, Local 1656 Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: December 10, 2014 Citation: 2014 HRTO 1774 Indexed as: Groh v. Waterloo (Regional Municipality)

WRITTEN SUBMISSIONS

Kelly Groh, Applicant Brian Kelly, Counsel

Regional Municipality of Waterloo, Respondent Carl Peterson, Counsel

Canadian Union of Public Employees, Local 1656, Respondent Paul O’Ryan, Counsel

Introduction

1This October 16, 2012 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”).

background

2After almost a full day of mediation/adjudication on May 15, 2014, the hearing in this matter commenced on May 16, 2014 at which time I heard submissions on the applicant’s request for production of documents.

3The parties also requested at that time that the issue of the timeliness of the applicant’s allegations be determined in advance of the continuation of the hearing. In accordance with the directions in my July 10, 2014 Interim Decision, the parties provided written submissions with respect to timeliness, with the Tribunal receiving the last of the submissions on August 1, 2014. These submissions also included arguments with respect to whether any allegations predating June 30, 2011 should be dismissed as having no reasonable prospect of success. There is no dispute among the parties that the respondents had no knowledge of the applicant’s disability and accommodation needs until June 30, 2011.

4On August 5, 2014, the applicant then delivered and filed a Request for an Order During Proceedings requesting he be permitted to amend his Application to include a claim of systemic discrimination and allegations dating back to September, 2010 (“Amendment RFOP”). The Tribunal received the last of the respondents’ responses to the Amendment RFOP on September 12, 2014.

5I have not considered the applicant’s September 23, 2014 “reply” to the Amendment RFOP, because I am satisfied its contents are not germane to the issues I am required to decide at this time.

6Because the applicant seeks to add allegations dating back to September, 2010, the Amendment RFOP is intertwined with the timeliness issue. As such, I have dealt with both, below.

request to amend

7The applicant seeks to amend the Application to include the following:

a. An allegation that the respondents discriminated against the applicant on an ongoing basis from at least June, 2010 to October 16, 2012;

b. An allegation that the discrimination is of a systemic nature;

c. Allegations that the discriminatory incidents include the manner in which the respondents’ representatives communicated with the applicant; the setting of inappropriate timelines for the applicant to provide medical information; failing to educate their employees and/or members with respect to the applicant’s disability; failing to provide a clear chain of command for the applicant; failing to provide the applicant with a quiet and/or calm environment or office space; providing contradictory instructions to the applicant and continuing to implement practices and policies that had the effect of discriminating against the applicant even when not interacting directly with him, such as by scheduling meetings, requesting information, giving directions, planning strategy and corresponding with its own representatives and with the other respondent’s representatives; and

d. An allegation that the discrimination by the respondents occurred at various meetings and disciplinary meetings and in emails, telephone conversations and correspondence on various dates between June 25, 2010 and September, 2012.

8The respondent, the Regional Municipality of Waterloo (“Waterloo”), objects to the applicant’s request to amend on the following bases:

a. None of the allegations pre-dating June 30, 2011 has a reasonable prospect of success because the applicant did not disclose his disability and accommodation requirements until June 30, 2011;

b. The applicant’s characterization of the allegations in the Application as constituting systemic discrimination is an attempt to have the untimely events predating October 16, 2011 included in the Application;

c. The applicant did not raise any issue of systemic discrimination when the Application was filed;

d. It would be prejudicial to allow the applicant to amend the Application given the amount of time that has passed since the Application was filed and the steps the parties have taken to date.

9The respondent, Canadian Union of Public Employees, Local 1656 (“the Union”), adopts Waterloo’s positions and adds the following objections:

a. The applicant raised no allegations of systemic discrimination when he filed the Application two years ago in October, 2012 and provides no explanation;

b. It would be prejudicial to the respondents;

c. Adding allegations of systemic discrimination would significantly expand the Application and effectively mean re-litigating the Application from the start; and

d. The new allegations have no reasonable prospect of success because the applicant’s actions demonstrate he is satisfied with the Union’s efforts concerning accommodation of the applicant in the workplace.

analysis and decision re: request to amend Application

10In considering requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

11With respect to the timing of the requests alone, the Application was filed on October 16, 2012. The hearing began on May 15, 2014 with almost a full day of mediation/adjudication.

12The Amendment RFOP was not made until almost two years after the Application was filed and three months after the first hearing day. On that basis alone, I find it prejudicial to allow amendments to the Application at this stage, but my further assessment follows.

13The allegations in the Application begin with a disciplinary meeting that took place in February, 2011, and the applicant states he had not been diagnosed at that stage. He was not diagnosed until April, 2011 and the report setting out his restrictions was shared with the respondents for the first time sometime in June, 2011. The applicant made no allegations about any events that predated February, 2011 in either the Application or in his Replies.

14The applicant now seeks to amend his Application to add allegations of systemic discrimination dating back to June, 2010 prior to any disciplinary action and any diagnosis.

15Given the timing of the request, I find it prejudicial to the respondents to allow the applicant’s request to amend to add allegations of discriminatory events pre-dating the events in the Application, which events the applicant alleges in the Application and in the Replies commenced with the disciplinary meeting in February, 2011.

16The respondents attended the hearing dates in May, 2014 having prepared their cases based on the allegations which, according to the Application, commenced in February, 2011. To allow the amendments to include events prior to that date at this stage would be to expand the scope of the Application and the Replies, and I find this would be prejudicial to the respondents.

17With respect to the applicant’s request to add a claim of systemic discrimination, although the respondents are correct that the applicant did not refer to systemic discrimination in the Application, he did refer to it in the Replies. However, he provided no details with respect to any allegations regarding the broader institutional context, and in my view, given the timing of the request and the fact that the applicant has provided no details to address the systemic discrimination allegation, I find it would be prejudicial to the respondents to allow this amendment at this stage.

18The applicant’s Amendment RFOP, as summarized in paragraphs 7(a) and (b), above, is denied. In so finding, I make as yet no ruling with respect to the timeliness of the incidents set out in the Application beginning in February, 2011, and I address this, below.

19The applicant further requests amendments to the Application to include details of the alleged discriminatory treatment as set out in paragraphs 7(c) and (d), above, which allegedly occurred between June 25, 2010 and September, 2012. I see no reason to disallow the amendments themselves because they appear to simply particularize allegations of discriminatory events, but the amendments shall encompass only the period beginning in February, 2011, and those allegations between February, 2011 and October 16, 2011 are subject to scrutiny with respect to the issue of timeliness, below.

timeliness /no reasonable prospect of success

20Both respondents requested that any of the applicant’s allegations predating October 16, 2011 should be dismissed as untimely. In addition, Waterloo requests that in any event any allegations predating June 30, 2011 should be dismissed as having no reasonable prospect of success on the basis that the applicant did not disclose his condition or accommodation requirements to the respondents until June, 2011 and he did not suggest the respondents should have known of those prior to June, 2011.

Waterloo’s Submissions

21Waterloo sets out the applicant’s allegations in phases as follows:

a. February 28, 2011 to June 29, 2011 – applicant on a leave of absence (“LOA”);

b. June 30, 2011 to September, 2012 – applicant’s LOA continues but applicant advises Waterloo of condition and required accommodation on June 30, 2011;

c. September 17 to 24, 2012 – applicant returns to work; and

d. September 25, 2012 forward.

22I have not addressed the phase from December, 2010 to February, 2011 as this was the subject of the applicant’s request to amend his Application, which I have dismissed.

23Waterloo makes two main arguments:

a. any allegations from February to June 30, 2011 have no reasonable prospect of success; and

b. the applicant has not established a series of incidents from February, 2011 to October 16, 2012 when the Application was filed.

Waterloo’s Submissions - No reasonable prospect of success

24Waterloo submits that as the applicant concedes the respondents did not know about the applicant’s diagnosis or accommodation requirements until June 30, 2011, any allegations from February to June 30, 2011 have no reasonable prospect of success.

Waterloo’s Submissions re Timeliness and Series of Incidents

25Waterloo submits with respect to events after June 30, 2011, the applicant alleges Waterloo refused to implement the accommodation recommendations at a July 27, 2011 return to work meeting, but makes no allegations that Waterloo made any new decisions or renewed its refusal to implement the recommendations between then and September, 2012 when the applicant returned to work.

26Waterloo submits there is no relationship between the July 27, 2011 return to work meeting and the return to work events in September, 2012, and even if there is a relationship the 14 month temporal gap breaks the connection between the events that would make it a series.

27The applicant received long term disability benefits (LTD) from June 28, 2011 to April 9, 2012 and Waterloo submits the applicant makes no allegation it did not allow him to continue his LOA.

28Waterloo submits the timely allegations do not begin any earlier than November 21, 2011 when the applicant’s doctor alleges contact from Waterloo is affecting the applicant’s recovery negatively. Waterloo alleges however that not only did it not get this doctor’s report, but even if it did, it is not an “incident” that would constitute part of a series of incidents.

29Waterloo further submits the next allegation relates to Waterloo’s request for medical documentation in May, 2012 after the LTD benefits were terminated, and concedes these allegations are timely.

Union’s Submissions

30The Union requests that all allegations predating October 16, 2011 be dismissed for delay, and submits the only potentially timely allegation is a September 11, 2012 incident, described below.

31The Union sets out the applicant’s allegations against it as follows:

• he was not treated equally by the Union as evidenced by a series of emails between him and the Union representatives on June 15 and 16, 2011;

• the Union did not properly advocate on his behalf in a July 27, 2011 return to work meeting for proper accommodation;

• the respondents, after the July 27, 2011 return to work meeting, continued to frustrate the applicant’s return to work, refused to accommodate the applicant’s disability and exacerbated the applicant’s disability by ignoring the recommendations in the June, 2011 medical report;

• an August, 2011 email from a Union representative to the applicant allegedly advising him not to waste his money hiring a lawyer when he is entitled to Union representation allegedly was discriminatory (an allegation the Union submits discloses no Code connection); and

• on September 11, 2012 the Union left him alone with Waterloo at a return to work meeting. The Union submits this potentially is the only timely allegation against it.

32The Union further submits there are no allegations against the Union between August, 2011 and September, 2012 and there is no link between the allegations concerning the August 2011 email and the September 11, 2012 meeting that could comprise a series of events.

33The Union submits in any event the more than one year gap between the events in the summer of 2011 and the one in September, 2012 interrupts the series. In addition, an allegation that has no reasonable prospect of success cannot form part of a series.

Applicant’s Submissions

34The applicant reiterates the allegations against Waterloo beginning June 25, 2010 and including those in February, 2011 referred to by Waterloo. I have already disallowed the request to amend the Application to include allegations prior to February, 2011.

35The applicant states in the Application that the respondents received the medical report in which the applicant’s diagnosis and accommodation needs were disclosed on June 30, 2011. Between then and the September, 2012 allegations that Waterloo concedes are timely, the applicant alleges in his submissions that Waterloo treated him in a discriminatory manner in the July 27, 2011 return to work meeting.

36Further in support of his submission that the allegations before October 16, 2011 should be found to be timely, the applicant makes a claim of systemic discrimination, which I have addressed already.

37The applicant submits there is no gap between incidents because of the continuing way the respondents communicated with the applicant.

analysis and decision re timeliness AND no reasonable prospect of success

38The potentially untimely allegations are those between February and October 16, 2011.

39I do not address the applicant’s argument that there was systemic discrimination given my ruling with respect to the applicant’s request to amend the Application.

No reasonable prospect of success

40First, the parties agree the respondents had no knowledge of the applicant’s diagnosis or need for accommodation prior to getting the medical report on June 30, 2011. In my view, the allegations prior to June 30, 2011 have no reasonable prospect of success.

41Therefore, the analysis of the timeliness of the allegations requires consideration of the allegations of events occurring between June 30 and October 16, 2011 in order to determine if they are part of a series.

Timeliness of Allegations Against Waterloo

42Because the allegations prior to June 30, 2011 have no reasonable prospect of success, they cannot form part of a series. See: Chappell v. Securitas Canada Limited, 2012 HRTO 874; Garland v. Canusa-CPS, 2012 HRTO 1309; and Reiner v. Sarnia (City), 2014 HRTO 498.

43In undertaking the timeliness assessment, I note that although the applicant refers in his submissions only to the allegations against Waterloo up to July 27, 2011, he refers in his Application and Reply to the termination of benefits in August, 2011 and the setting of unrealistic deadlines for providing requested medical documentation in August and September, 2011. The applicant also alleges that Waterloo asked him for medical documentation in May 2012 in a manner that was discriminatory and this allegation is timely. I have considered these allegations in my assessment of whether there is a series of events between when the respondents learned of the applicant’s accommodation needs on June 30, 2011 and October 16, 2011.

44Subsections 34(1) and (2) of the Code enable individuals to file applications to the Tribunal and set out the timeframes for doing so:

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.

45When considering whether the allegations constitute a series of incidents within the meaning of section 34(1)(b), the Tribunal generally considers the following factors:

• whether there is an ongoing series of incidents or whether there is a single act of alleged discrimination with continuing effects: Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”);

• whether the incidents involve fresh steps taken by the parties, with each step giving rise to a separate alleged breach of the Code (Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, as cited in Garrie at para. 40);

• whether the alleged discriminatory incidents are part of a pattern or series of incidents of a similar nature or character: Garrie; and

• whether any gap of a year or more interrupts the series of incidents. See, e.g.: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; Chintaman v. Toronto District School Board, 2009 HRTO 1225; and Killeen v. Soncin Construction, 2013 HRTO 350 (“Killeen”).

46I note at the outset that because I have found this is not a case of systemic discrimination, I have not considered in detail the recently released decision in Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370, nor Grange v. Toronto (City), 2014 HRTO 633, to which I had referred the parties.

47At paragraph 35 of Garrie, the Tribunal pointed out that in accommodation cases such as this one, the Tribunal has held that it is not an ongoing incident of discrimination where an employer has made a particular decision about an applicant’s accommodation and the applicant repeatedly tries to have the employer reverse or change its position: Hoblack v. St. Mary’s Cement, 2010 HRTO 1799 at para. 21 and Huo v. University of Western Ontario, 2012 HRTO 198 at para. 13.

48In the instant case, following receipt of the June 30, 2011 medical report, a return to work meeting was held on July 27, 2011. On July 28, 2011 the applicant was hospitalized, allegedly due to stress from having signed a Return to Work plan after being told he would be terminated otherwise. He then was on a leave of absence from work until September, 2012.

49Waterloo alleges there were no fresh steps taken between the July 27, 2011 return to work meeting and September, 2012. I agree in this case, unlike the facts in Killeen, it appears no fresh steps were taken by Waterloo in the intervening period with respect to the return to work and accommodation issue.

50The applicant provided further medical documentation in August and September, 2011 to support his LOA, and this further medical documentation was not relevant to a return to work and accommodation issue. Waterloo contacted the applicant in September, 2011 and advised he needed to provide additional medical information if he wished to return to work, but there is no indication the applicant provided any such medical information to Waterloo before 2012. Waterloo also asked for medical documentation in May 2012, which event is timely. Waterloo’s requests for additional medical information alone does not constitute events that could form part of a series with the July 2011 and September 2012 return to work meetings. There was no evidence that the applicant asked to return to work during that time or that Waterloo made any additional decisions based on new information in that intervening period. These requests for further medical documentation are not, in nature or character, part of a pattern of an alleged failure to accommodate the applicant’s disability.

51While the applicant was in receipt of LTD, the LTD carrier made separate requests for further medical information, but its involvement was separate from any actions by Waterloo and the LTD carrier is not a respondent in this Application.

52The facts in this case appear to be somewhat similar to the facts in Longtin v. Great-West Life Assurance Company, 2011 HRTO 244. At paragraph 18 of that decision, the Tribunal stated the applicant continued to experience the consequences of what she alleged was a discriminatory act (in that case termination), and that her attempts to dispute that, and the company’s decision to stand by its original decision, could not be said to be further acts of discrimination.

53In this case, even if Waterloo made a discriminatory decision not to accommodate the applicant in the July, 2011 return to work meeting (which would be determined at the hearing), Waterloo did nothing between then and the September, 2012 work meeting except maintain its original position. It took no fresh steps, and I find no series of incidents. I also do not find the termination of benefits to constitute an event that could be part of a series with respect to the return to work and accommodation issue. Furthermore, I find that the gap of more than a year interrupts the series between the July, 2011 incident and the September, 2012 incident. As such, I find that the allegations regarding the events of the July 27, 2011 return to work meeting to be untimely.

54Despite this finding that there was no series of events with respect to the return to work meetings, I find there is a series of events with respect to the manner in which requests were made for medical documentation in August and September, 2011 and again in May, 2012, that may constitute harassment based on disability as alleged by the applicant.

55With respect to the return to work meetings, because I find there is no series of events between July, 2011 and September, 2012, I must next consider whether there is a good faith explanation for the delay in filing the Application in respect of the July 27, 2011 return to work meeting events. I will address the good faith argument after I deal with the allegations against the Union.

Allegations Against the Union

56The allegations against the Union include:

a. that he was not treated equally by the Union as evidenced by a series of emails between him and the Union representatives on June 15 and 16, 2011;

b. that the Union did not properly advocate on his behalf in the July 27, 2011 return to work meeting for proper accommodation;

c. an allegation the Union refused to accommodate the applicant’s disability and continued to frustrate the applicant’s return to work after the July 27, 2011 return to work meeting;

d. that an August, 2011 email from a Union representative to the applicant allegedly advising him not to waste his money hiring a lawyer when he is entitled to Union representation allegedly was discriminatory; and

e. that on September 11, 2012 the Union left him alone with Waterloo at a return to work meeting.

No reasonable prospect of success with respect to allegations against the Union

57The allegations of discrimination in the June 15 and 16, 2011 e-mails are dismissed as having no reasonable prospect of success because the parties agree the Union had no knowledge of the applicant’s disability or accommodation requirements prior to June 30, 2011.

58In addition, the applicant’s allegation that the Union told him in August, 2011 not to waste his money to hire a lawyer because he has Union representation is dismissed. The applicant pointed to no evidence that linked the Union’s advice to a Code ground. As a result, this allegation has no reasonable prospect of success and is dismissed.

Timeliness of Allegations Against Union

59The remaining untimely allegation is that the Union did not properly advocate on his behalf in the July 27, 2011 return to work meeting for proper accommodation. There is no other allegation against the Union until the allegation that the Union left him alone at a meeting in September, 2012, and this allegation is timely.

60Again, I find that the gap of more than a year interrupts the series between the events of the July 27, 2011 meeting and the September, 2012 meeting. The allegations about the July 27, 2011 meeting are therefore untimely unless there is a good faith explanation for the delay.

Submissions with respect to Good Faith

61The applicant submits there is a good faith explanation for the delay because he was on long term disability from February, 2011 to September, 2012 and it was reasonable to finish his LOA pending receipt of Waterloo’s final proposed return to work plan in September, 2012 prior to commencing this Application. He realized in September, 2012 the respondents did not intend to accommodate his disability.

62He further submits the delay between the July 27, 2011 return to work meeting and October 16, 2011 is not great and there is no substantial prejudice to the respondents.

63The applicant states the Tribunal should consider factors including the length of the delay, whether Code-related reasons directly impeded the applicant’s ability to file an application and the nature of the allegations.

64He argues he feared exacerbating his ability to return to work or the Union’s representation of him.

65Finally, he argues the respondents have claimed no particular prejudice and will suffer none.

66The Union and Waterloo submit there is no good faith explanation for the delay because the applicant was able to hire and instruct counsel at least as of August, 2011. Waterloo also argues the applicant did not assert he was incapable of filing the Application in the disputed period.

67Further, the Union submits the applicant’s reasons for not filing earlier explains his choice not to involve the Union in the back to work process but do not explain the applicant’s delay in filing the Application. In addition, any fear of impeding his return to work does not apply to the Union because the Union cannot reprise in this manner.

68Both the Union and Waterloo argue the applicant’s delay is not excused because he was pursuing other avenues.

analysis and decision re good faith

69Subsection 34(2) of the Code states:

34(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.

70In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation of 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.

71In the instant case, I find there is no good faith explanation for the delay. Although the applicant has a disability, he did not claim he was unable to commence the Application. In addition, he retained and instructed counsel in the disputed period, and yet waited 14 months to commence the Application.

72I do not accept the bald assertion the applicant was fearful an Application may impede his return to work process as the applicant pointed to no evidence to support that. In addition, I agree with the respondents that in any event pursuing other avenues does not generally constitute a reasonable explanation for any delay. See: Kohar v. Hamilton-Wentworth District School Board, 2013 HRTO 1995.

73Given my conclusion that there is no good faith explanation for the delay there is no reason to consider whether any party would be prejudiced by the delay.

order

74The applicant’s request to amend the Application to include a claim of systemic discrimination is denied.

75The applicant’s request to amend the Application to include details of the alleged discriminatory treatment, as set out in paragraphs 7(c) and (d), above, is granted for the events occurring in the period between October 16, 2011 and October 16, 2012, inclusive, and for the requests by Waterloo for medical documentation on August and September 2011.

76The applicant’s request to amend the Application to include allegations of discrimination prior to February, 2011 is denied.

77The applicant’s allegations pre-dating October 16, 2011 are dismissed, with the exception of the allegations of harassment due to the manner in which medical documentation was requested beginning with the August, 2011 allegation.

next steps

78By no later than December 15, 2014, the parties shall identify three consecutive mutually-available days after March 30, 2015, and before May 1, 2015, for the continuation of this hearing, and provide this information to the Tribunal.