Theresa Dewdney v. Toronto Transit Commission, 2014 HRTO 23

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theresa Dewdney

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: January 7, 2014

Citation: 2014 HRTO 23

Indexed as: Dewdney v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Theresa Dewdney, Applicant ) Patrick James, Counsel

Toronto Transit Commission, ) Lucy Siraco, Counsel

Respondent )

INTRODUCTION

1The applicant filed this Application on May 28, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and reprisal.

2The applicant was injured in a motor vehicle accident on her way to work on September 26, 2006. The applicant alleges that the respondent failed to properly accommodate her disabilities and terminated her employment in May 2011 while she was absent from work due to her disabilities.

3Interim Decision 2012 HRTO 2212 dated November 26, 2012, granted disclosure of parts of the applicant’s occupational health claims management files as maintained by the respondent’s human resources department.

4The respondent filed a Response on January 16, 2013. The respondent alleges that it properly managed the applicant’s disability and accommodation claims and did not engage in any discrimination or reprisal. In the Response, the respondent requested that the Tribunal dismiss some of the Application as untimely.

5Interim Decision 2013 HRTO 745, dated May 3, 2013 removed, on consent, a previously named individual respondent as a party from the Application.

6Case Assessment Direction, dated September 3, 2013, instructed the parties to file submissions regarding whether some or all of the Application is outside of the Tribunal’s jurisdiction because of delay.

7The applicant filed written submissions on October 11, 2013 and the respondent filed written submissions on November 8, 2013.

SUMMARY OF APPLICATION

8The Application alleges the following chronology of events:

a. The applicant commenced employment with the respondent as a bus operator in January 1994. As a result of a motor vehicle accident in September 2006, the applicant sustained injuries and, consequently, experienced various physical and mental disabilities;

b. In November 2006, the applicant, along with a union representative, met with the respondent’s medical consultant and the respondent’s health services nurse. The applicant alleges the nurse made threatening remarks to her at the conclusion of this November 2006 meeting;

c. The applicant received sick pay benefits from the respondent up to March 2007 and Sun Life, the respondent’s insurance carrier, paid long term disability (“LTD”) benefits to the applicant from August 2007 to September 2008. Thereafter, Sun Life discontinued the LTD benefits because of a dispute over the applicant’s ability to return to work;

d. In August 2008, Sun Life and the respondent unilaterally imposed a return to work plan on the applicant as a bus operator. The applicant alleges she did not resume employment pursuant to this plan because the respondent failed to provide her with suitable modified duties and failed to consult her and her medical advisors regarding the plan;

e. The applicant provided the respondent with up to date medical information in September 2008 confirming that she was unable to return to regular or modified duties. The applicant alleges that the respondent did not offer further accommodation upon receipt of this information;

f. The applicant alleges that, in November 2008, the respondent’s health services nurse made offensive remarks to her. The applicant alleges that in December 2008 she, along with a union representative, met with the respondent’s nurse and informed the nurse that in no uncertain terms the applicant could not operate a bus because of her medical restrictions;

g. The applicant alleges that subsequent to the December 2008 meeting the respondent did not propose any other accommodation options and did not obtain any further medical information from her physician despite the applicant having provided a signed waiver during the December 2008 meeting;

h. The applicant alleges that in December 2009 she delivered a doctor’s letter to legal counsel for the union with the expectation that the union would forward the medical letter to the respondent employer;

i. The applicant alleges that in February 2010 she requested a meeting with the respondent and the union. During this meeting the applicant’s husband provided medical documentation confirming the applicant’s disability. The applicant alleges that respondent ignored this information and demanded the applicant provide further medical evidence from a specialist, despite the fact that the documentation being provided at that instance included information from a psychiatrist;

j. The applicant alleges that her family physician also provided medical information substantiating her disability-related needs. The applicant asserts that the respondent lost or ignored this information; and

k. The applicant alleges that the respondent failed to accommodate her mental disability in scheduling meetings with her up to and including the date of her disability. The respondent terminated the applicant’s employment on May 31, 2011.

SUMMARY OF PARTIES’ POSITIONS RE: DELAY

Applicant

9As a preliminary issue, the applicant contends that the respondent sought dismissal for delay only in relation to the allegations against the former personal respondent, namely the respondent’s health services nurse. The applicant argues that since the respondent has not requested the whole Application be dismissed, only those allegations as against the health services nurse should be reviewed for whether those allegations are beyond the jurisdiction of the Tribunal because of untimeliness.

10This Application was filed on May 28, 2012. The applicant submits that the entire Application is within the Tribunal’s jurisdiction because all events, including the alleged harassing comments by the nurse, form a series of incidents of discrimination, the last of which falls within the one-year limitation period of the Code. The applicant asserts that there were no gaps between the incidents, the parties are the same, and the circumstances are a pattern of disability discrimination with a clear nexus to the timely event of the discriminatory termination.

11In the alternative, the applicant submits that the delay was incurred in good faith and without substantial prejudice to any person affected by the delay. The applicant asserts that the crystallizing discriminatory dismissal occurred on May 31, 2011. The applicant claims that up until her dismissal she, in good faith, believed that the respondent would accept her medical documentation that she was totally disabled and would engage her in a process of accommodation when her condition improved.

12The applicant alleges that she diligently followed her rehabilitation plan and worked with the union and independent legal counsel to seek reinstatement of her LTD benefits. The applicant submits that she “remained hopeful that she would not have to file a human rights application” until it eventually became clear that, upon her discriminatory termination in May 2011, no other option remained. The applicant submits the respondent is fully able to answer the allegations and there has been no indication of any loss or lack of relevant evidence, nor any issues concerning the availability of witnesses.

Respondent

13The respondent acknowledges that its Response sought dismissal only as against the former personal respondent on the basis that the allegations made against the nurse were out of time. The respondent argues that it is not precluded from now seeking full dismissal and, therefore, it asserts that all of the Application should be dismissed due to delay.

14The respondent submits that the allegations do not constitute a series of related incidents. The respondent argues the alleged events are, at most, the continuing effects or consequences of the September 2008 decision by Sun Life to terminate the applicant’s LTD benefits. The respondent further submits that alleged events following Sun Life’s September 2008 determination constitute neither further incidents of discrimination nor a series of incidents.

15The respondent argues that the events are not a series of incidents because there are several breaks between the alleged incidents some of which exceed one year. The respondent also argues the alleged events are qualitatively different involving different individuals and circumstances. The respondent contends that the applicant’s delay was not incurred in good faith because she has not provided a reasonable explanation as to why she did not pursue her rights in a timely manner. The respondent asserts that there is inherent prejudice in defending against old allegations and that, since Sun Life is no longer its insurance carrier, it will experience difficulty in arranging for Sun Life employees/former employees to attend as witnesses.

LEGAL PRINCIPLES

16Section 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 series of incidents of alleged discrimination. Section 34 states:

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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

17The 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 and file an application within one year of the alleged discrimination.

18In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or whether the last incident is part of a series of incidents of alleged discrimination.

19When considering whether the allegations constitute a “series of incidents”, within the meaning of section 34(1)(b), the Tribunal generally examines whether the events may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus: AlSaigh v. University of Ottawa, 2012 HRTO 2 at para. 8 and cases cited therein. The Tribunal has defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457. A “series of incidents” may be considered to exist where there is a common theme, similar parties and/or circumstances.

20To be a “series of incidents” there must be continuing acts of discrimination which in of themselves could be considered as separate contraventions: Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC). In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal applied the reasoning in Visic, above, to delineate that “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.”

21The Tribunal has found that a gap of more than one year between incidents in a series would in most cases interrupt the series: Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442. The Tribunal has also held that incidents involving different facts and engaging different grounds under the Code may not be considered to form a series of incidents for the purposes of section 34(1)(b): Polihronakos v. Mississauga (City), 2010 HRTO 1433.

22If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next 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.

23In order to satisfy the Tribunal that the 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: 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.

24In assessing substantial prejudice, some factors that the Tribunal may consider include the length of the delay and the impact of the delay on the party’s ability to make full answer and defence, such as the availability of witnesses and documents, ability to investigate and retrieve evidence: AlSaigh, above.

25Given that both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it 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.

ANALYSIS

26The applicant cites the termination of her employment on May 31, 2011 as the last discriminatory event crystallizing the Code violations. The applicant alleges the events going back to September 2006 constitute a series of related incidents related to the discriminatory dismissal, thereby rendering all of her allegations as timely.

27The respondent disputes the May 31, 2011 date as last event and contends that the discrimination crystallized in September 2008 when Sun Life’s ceased benefits payments on the basis that the applicant was fit to return to work. The respondent, relying on the reasoning in Visic, above, and Mafinezam, above, submits that all events subsequent to September 2008 were the continuing effects of Sun Life’s decision.

28I disagree with the respondent’s interpretation of the chronology. In my view, the Application alleges various interactions with the respondent even after September 2008 which could constitute new and separate contraventions of the Code, including the alleged offensive remark in November 2008, the alleged February 2010 demand for further medical information from a specialist, and the events surrounding the May 2011 termination of employment.

29The Application was filed on May 28, 2012 and any timely allegations consist of events from May 28, 2011 and onwards. The applicant’s May 31, 2011 dismissal occurred within one year of the date on which the applicant filed the Application. Therefore, the Tribunal has jurisdiction over the alleged discriminatory termination and this part of the Application will not be dismissed for delay. The issue remains whether the events alleged prior to the applicant’s dismissal are part of a successive “series of incidents” that come within the purview of section 34(1) (b) of the Code.

30The applicant argues that there were a “series of incidents” in that the discrimination was ongoing because the respondent continued to deny her accommodation notwithstanding her repeated efforts to provide updated medical information regarding medical restrictions. The respondent asserts that there were qualitative differences in the events, as well as gaps in time, such that the allegations do not fall within a series of related incidents.

31I do not accept the applicant’s argument that all the events prior to the employment termination should be accepted as part of a “series of incidents” because they relate to her ongoing efforts to seek accommodation. I agree with the respondent that the circumstances cannot form a “series of incidents” because of the existence of a least two extended breaks in the temporal connection between the alleged events. I find that there were significant gaps in the chronology from December 2008 to December 2009 and from February 2010 to May 2011 which sever the successive nature of the alleged series of events.

32Based on a plain reading of the applicant’s narrative there is a distinct break from the December 2008 meeting with the nurse until the December 2009 contact with the union’s counsel. It is noteworthy that the latter incident as summarized in paragraph 8(h) above relates solely to the applicant’s interactions with the union and does not even appear to involve or impugn conduct on the part of the respondent.

33Further, again based on the applicant’s narrative, another lapse in the chronology is evident between the February 2010 and the May 2011. The applicant alleges that in a February 2010 meeting that she attended with her husband the respondent demanded additional medical evidence from a specialist. The applicant next alleges that she was discriminatorily dismissed in May 2011. As such, there is a clear gap or interruption in the allegations between the February 2010 meeting and the May 2011 termination.

34Based on the foregoing chronology, there is a gap in the alleged interactions from December 2008 until February 2010 followed by another gap until the dismissal in May 2011. In light of the fact that the December 2009 union incident does not directly involve the respondent, there is effectively a gap in the chronology of allegations against the respondent from December 2008 to February 2010. As such, I find these events are not only outside the one-year limitation period, but also do not constitute a series of incidents as required by Section 34(1) (b) of the Code.

35Next, I will examine whether the applicant has established that the delay in raising the untimely allegations was incurred in good faith and, if so, that no substantial prejudice has been caused to the respondent as a result of the delay.

36In 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. Factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

37Based on the parties’ submissions, it seems that there were several junctures in the chronology of various incidents where the applicant’s alleged experiences of differential treatment caused the applicant to raise concerns of unfairness and pursue these with the respondent, as well as other forms of redress. For example, in March 2009, the applicant launched legal proceedings against the respondent and Sun Life with respect to the termination of the LTD benefits. In August 2009, the applicant pursued an internal human rights complaint with the respondent. The applicant also pursued to complaint against her union with the Ontario Labour Relations Board in November 2011.

38I have carefully considered the parties’ submissions and reviewed the narrative for indications of good faith. Although the narrative indicates that the applicant experienced stress, anxiety and depression, the information provided by both parties confirms that the applicant pursued recourse on numerous occasions through various avenues. The applicant filed an internal complaint with the respondent, retained independent counsel, launched legal proceedings against the respondent and Sun Life and pursued a complaint against her union before the Ontario Labour Relations Board, all of which occurred between 2009 and 2011. The applicant provided no particulars on the basis of which the Tribunal can determine that her mental health status precluded her from seeking timely human rights recourse.

39The Tribunal has repeatedly held that the fact that a person is pursuing recourse elsewhere or waiting for other legal proceedings to conclude before advancing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application: Cartier, above. As stated by the Tribunal in Dorriesfield v. Domtar, 2012 HRTO 23 at para. 21, “[i]t is settled law that pursuing other avenues of redress is not a good faith explanation for delay.” The parties’ submissions and materials indicate that for a number of years, notwithstanding any alleged disability-related challenges, the applicant actively advanced her rights and sought out multiple avenues of recourse. I find that the applicant has not provided a good faith explanation for the delay in this case.

40In addition, I find there was no reason why the applicant could not have pursued her human rights concerns as early as 2009 when she commenced legal proceedings and an internal human rights complaint against the respondent alleging unfair treatment. Consequently, I find the applicant has not established that she could not have pursued her rights within the timeline mandated by the Code.

41I am not persuaded that the delay in bringing an Application regarding the events from 2006-2011 was incurred in good faith. Other than asserting her claim that she believed in good faith that the respondent would provide accommodation, the applicant has not justified the delay for this period of time and has not explained why she did not pursue her rights earlier. Given the various complaints and actions the applicant pursued to seek redress prior to filing this Application, I am not persuaded that the delay in pursuing the allegations from 2006 to May 2011 was incurred in good faith.

42I find that the Tribunal does not have jurisdiction over the events prior to May 2011 because these allegations relate to events that occurred beyond the one year limit and the delay was not incurred in good faith. As such, it is not necessary for me to consider whether substantial prejudice would result from the delay.

CONCLUSION

43In summary, based on a close review of all the submissions and specifically the allegations detailed in the Application, I find the allegations prior to May 2011 do not constitute a series of incidents within the meaning of section 34(1)(b). As previously noted, Tribunal decisions have found that temporal gaps of one year between allegations may interrupt “a series of incidents”. In addition, the applicant has failed to satisfactorily explain why she was unable to pursue a human rights claim in a timely manner. The applicant has not met the high onus the Tribunal requires to show that the delay in the filing of an Application was incurred in good faith. Accordingly, the Tribunal cannot deal with the allegations in the Application with respect to incidents from 2006 to May 2011 as these aspects of the Application do not meet the requirements of section 34(1) of the Code.

44In conclusion, to the extent the Application makes allegations regarding events that pre-date May 28, 2011, those allegations are untimely and not within the Tribunal’s jurisdiction. The timely allegation regarding the termination of employment will continue to be processed.

45I am not seized of this matter.

Dated at Toronto, this 7th day of January, 2014.