Margaret Juan v. Lakehead University, 2014 HRTO 562

Human Rights Tribunal of Ontario

B E T W E E N:

Margaret Juan

Applicant

-and-

Lakehead University

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: April 22, 2014

Citation: 2014 HRTO 562

Indexed as: Juan v. Lakehead University

WRITTEN SUBMISSIONS

Margaret Juan, Applicant Self-represented

Lakehead University, Respondent Mary Catherine Chambers, Counsel

1This is an Application filed April 17, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was discriminated against on the basis of disability when her registration at the Lakehead University was deactivated and she was withdrawn from a master’s program on October 26, 2010.

2On October 1, 2013, the respondent filed a Request for Order During Proceedings seeking dismissal on the basis of delay. The respondent requested that the Tribunal deal with the issue in writing.

3Initially, the applicant did not respond to the Request and on November 20, 2013, the Tribunal issued a Case Assessment Direction directing the applicant to file a Response failing which the Application may be dismissed as abandoned.

4The applicant filed a Response on November 28, 2013 submitting that the Application is not out of time. The applicant submits that she filed it August 13, 2012. The applicant also alleges that she is complaining of events that occurred after her withdrawal from the program when she contacted various representatives of the University seeking to resolve her grievances. The applicant made no submissions on the manner of hearing.

5I have concluded that it is appropriate to deal with the Request by way of written submissions. I have also concluded that the Tribunal has no jurisdiction to hear the Application because of delay for reasons set out below.

6I begin with a description of the allegations in the Application.

Summary of Application

7The Application alleges discrimination in services on the basis of disability. The applicant alleges that she was not accommodated during the time she was in a master’s program and in the circumstances surrounding the de-activation of her registration and withdrawal from the program on October 26, 2010. In the Application, the applicant states that the date of the last incident of discrimination is June 14, 2012.

8Based on the materials filed by the applicant (including the Application, Reply and Response to the Request), it would appear that the applicant had a number of written or other communication with the respondent following her withdrawal from the program. Given the applicant’s reference to June 14, 2012 as the last incident of discrimination, it is apparent that the applicant relies on this chronology of contact as part of the events underlying the Application. This chronology of contact includes:

• On October 28, 2010, the applicant filed an appeal requesting the University to reconsider its decision based on her disability, but they refused. A copy of an appeal decision dated October 28, 2010 is filed with the Reply;
• On January 24, 2011, the applicant emailed the manager of graduate studies, asking for help in regards to the steps needed for readmission into the program;
• In 2011, the applicant spoke to the manager of the student accessibility program, about her status and she advised the applicant to contact the ombudsman officer at the University. The applicant includes an email from the student accessibility manager which appears to reflect that this occurred on March 2, 2011; elsewhere in her written submission, the applicant states that the contact was November 3, 2011;
• On January 11, 2012, the applicant exchanged email messages with the ombudsman officer.
• On March 7, 2012, the applicant emailed the president of the University detailing her experience in the program and alleging that the University failed to accommodate her while in the program. The applicant sought a detailed review of her financial account, that her name be recalled from collection services and that she be registered in the program. In explaining her delay in contacting the president, the applicant stated that she was not physically and emotionally and medically ready to address the issues and that now she feels that she is able to go back to school and complete the program. The president responded asking the applicant to contact the harassment and discrimination coordinator at the University.
• Following her contact with the president, the applicant includes several other emails between herself and staff in human resources in the period March 2012 to June 2012. The emails reflect that the assistant director of human resources set up a time to speak by telephone on May 17, 2012. No description of the content of the call is included. In addition, the applicant emailed the president again on June 13, 2012 indicating that she had not heard back from human resources. On June 14, 2012, human resources emailed the applicant confirming that the University’s position was that it would not be taking any further action based on her email of March 7, 2012. This email states that this was articulated during the last two phone calls with the applicant.

The Parties’ Submissions

9The respondent submits that the Application is untimely. The respondent states that the pivotal event in the matter is the applicant’s registration being deactivated on October 26, 2010 and that the Application was filed two years, 6 months after the last incident of discrimination. While acknowledging that the applicant contacted some individuals to discuss her issues and continued to experience the consequences of deactivation, the respondent argues that the continued effects do not create a continuing contravention.

10In support of its submissions, the University relies on the decision in Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993 (ON SCDC), 236 O.A.C. 115 (ON S.C.D.C.) which discussed the concept of a “continuing contravention” and adopted the following statement by the Manitoba Court of Appeal:

To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences. (Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, quoted in Visic at para. 45)

11In the alternative, the respondent asserts that after October 2010, the gaps of time between communications were sufficiently prolonged to interrupt any series of continuing contraventions.

12The respondent further alleges that the applicant has failed to establish that any delay was incurred in good faith. In referring to the applicant’s explanation for delay in the email to the University president, the respondent states that the applicant has not provided any evidence of her physical or emotional inability to address these issues. In fact, the respondent submits that the applicant wrote to the University to request re-admission in January 2011 suggesting that she was well enough to attend and continued to work full time between October 2010 and March 2012. The respondent submits that the applicant has not provided a reasonable explanation for delay.

13The applicant disputes that the Application is untimely. The applicant submits that she filed the Application on August 13, 2012 and not April 17, 2013, relying on an email she sent to the Tribunal on the former date in which she referenced an application. The applicant also relies on the history of her contact with the University after she was de-registered. The applicant states that she is within the timeline “given the complexity of this case” and that even the president ignored her complaint of discrimination.

14The applicant alleges that “Ontario Human Rights” advice to her was to “solve my grievances with University prior to filing an official complaint”. The applicant states that her attempts to resolve the grievances continued and her last attempt was an email to the president of the University on March 7, 2013 (which I presume is a reference to the March 7, 2012 email referenced above).

15The applicant provided no other submissions on the issue of good faith nor did she challenge the claim that she was working in the period October 2010 to March 2012.

Decision

16Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

17Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist; in particular that any delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

18In order to determine whether the Tribunal has jurisdiction to deal with the Application and having regard to the parties’ positions, the questions I need to answer are:

a. What is the date of Application?

b. Was the Application filed within one year of the last incident or last incident in a series of alleged discrimination?

c. If the Application was not filed within one year of the last incident of discrimination, was the delay incurred in good faith?

What is the date of Application?

19The date of Application is set by the Tribunal upon receipt of a Form 1; in this case April 17, 2013. While the applicant submits that she filed a Form 1 on August 13, 2012, the documentation provided by her does not support that the applicant filed an application prior to April 17, 2013.

20In particular, the applicant provides what appears to be part of an email dated August 13, 2012 addressed to a “registrar” referencing a “human right application” and asking the Tribunal to go over the Application and let her know if she needs to “fill some parts up”. The email does not indicate the email address for the registrar. The applicant also includes what appears to be the response to this email dated September 6, 2012 from the Registrar of the Tribunal indicating that the “emails” were sent to an incorrect address and were only forwarded to the Registrar on September 5, 2012. The response indicates that as the attachments do not include a Form 1 to be filed with the Tribunal, the Registrar will not be retaining any of the documents. The Registrar refers the applicant to the Tribunal’s website for information and instructions regarding how to file an application.

21The applicant also states that she contacted “Ontario Human Rights” on January 2, 2013 but does not provide the details of the same. It appears she received an email from the Tribunal on the same day providing information about how to file an application and other rules governing communication with the Tribunal.

22Based on these emails, while it would appear that the applicant may have had email communication with the Tribunal prior to filing the Application, there is no basis for concluding that she actually filed an Application prior to April 17, 2013.

Was the Application filed within one year of the last incident or last incident in a series?

23The next issue is whether the Application was filed within one year of the last incident or last incident in a series of alleged discrimination. This issue requires that I determine as a threshold issue the date of the last incident of discrimination.

24The applicant appears to be arguing that the Application is timely because she is complaining about an ongoing series of events within the meaning of section 34(2) of the Code which only concluded on June 14, 2012 when the University advised her that it would not be taking any further action in response to her email of March 7, 2012. The respondent disputes this and argues that the Application relates to a single pivotal incident of deregistration and withdrawal from the program on October 26, 2010 and that while there may have been continuing effects of that incident, those continuing effects are not separate incidents of discrimination.

25In Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal set out three non-exhaustive principles to assist in identifying the distinction between an incident of discrimination and its continuing effects. The Tribunal stated at paras. 39-42:

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code…[...]

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

26Applying these principles, I find that the last incident of alleged discrimination is the applicant’s de-registration and withdrawal from the program on October 26, 2010. While it is apparent that the applicant had ongoing contact with the University, I have difficulty viewing any of that contact as a fresh incident of discrimination on the basis of the particulars the applicant has set out about that contact.

27For example, while the applicant states that she sought information about re-admission in January 2011, the applicant has not provided anything about that contact that would be a basis for concluding that there was a fresh incident of discrimination. In fact, it appears that she did not receive a response to her inquiry.

28Further while the applicant appears to have made overtures to the ombudsman and the University president, these overtures appear to be efforts to have the University overturn its decision as opposed to providing any basis on which to conclude that there is a fresh act of discrimination.

29For example, in the email to the president, the applicant details her concerns of how she was treated and refers to the content of her email as “my grievances” with the University (the particulars of which relate to the events leading up to her de-registration and withdrawal from the program in October 2010). While the applicant asks the president for a number of remedies for this alleged discrimination including that she be registered and allowed to complete her master’s program, I have difficulty seeing how the respondent’s decision to not reverse its position which was what was in essence communicated back can constitute a fresh act of discrimination on which a claim might be founded.

30In the circumstances, I find that the last incident of discrimination is October 26, 2010 and thus the Application is filed more than 12 months after the last incident of discrimination. In the result, the Application is untimely unless the applicant can establish good faith.

Was any delay incurred in good faith?

31As the applicant takes the position that she filed the Application within 12 months of the date of the last incident, she did not formally assert that any delay was incurred in good faith. Nonetheless, I have considered whether based on the material submitted there is any basis for finding good faith. I note that the respondent did raise this issue squarely in its Request.

32In order to satisfy the Tribunal that the delay was incurred in good faith, the 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; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

33Having reviewed the material filed including the applicant’s failure to challenge some of the submissions made by the respondent, I find that there is no basis for concluding that any delay was incurred in good faith. The applicant does appear to suggest in her email to the president that there was a delay in filing her “grievances” because she was not physically, emotionally and medically able to address the issues. However, the applicant has provided no documentation or further particulars in support of this claim notwithstanding that the respondent highlighted this deficiency in their Request. Moreover, the applicant has not challenged the respondent’s claim in the Request that she was working full time during the period October 2010 to March 2012. The engagement in full-time employment would appear to be inconsistent with being unable for medical or other reasons to pursue a claim in a timely way.

34Finally, the applicant makes a submission that she received “Ontario Human Rights advice” to “solve [her] grievances with University prior to filing an official [sic] compliant”. The applicant goes on to state that she then made the contact with the University on January 24, 2011 as set out in the chronology above. While there may be instances where a party could receive advice from a lawyer or otherwise that would support a finding of good faith, I do not find that the applicant has pled sufficient facts upon which such a conclusion could be reached in this case. The particulars about the advice received are sparse. Further and in any event I do not find that advice that occurred prior to January 24, 2011 would justify a delay which continued for over two more years.

35For all of the above reasons, based on the submissions made and the material filed, there is no basis for finding good faith.

36In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34.

37The Application is dismissed.