Matuszak v. Regency LTC Operating Limited Partnership, 2014 HRTO 685

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ewa Matuszak

Applicant

-and-

Regency LTC Operating Limited Partnership

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 13, 2014

Citation: 2014 HRTO 685

Indexed as: Matuszak v. Regency LTC Operating Limited Partnership

WRITTEN SUBMISSIONS

Ewa Matuszak, Applicant

Kim Boyle, Representative

Regency LTC Operating Limited Partnership, Respondent

Pamela Leiper, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal dismiss the Application due to delay.

2By Application filed on December 18, 2013, the applicant alleged that the respondent discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondent has failed to provide reasonable accommodations for her disability. In her Application, she stated that the respondent continued to refuse to accommodate her disability up to the time she filed her Application.

3The respondent filed a Request for Order During Proceedings requesting that the Tribunal dismiss the Application due to delay. In its Request, the respondent stated that it deemed the applicant’s employment to be terminated in September 2011 after she failed to respond to a letter it sent to her advising that she needed to contact the respondent by December 15, 2009, or it would deem her to have resigned her position. The respondent then sent the applicant another letter in December 2011 advising the applicant that she needed to contact the respondent by January 15, 2012, or else the respondent would permanently remove her from its staffing list. Following this letter, which the respondent says it sent in error, the respondent, the applicant and representatives from the applicant’s union met on January 10, 2012. The respondent states that it advised the applicant at the meeting that her employment already had been terminated and that she was no longer employed by the respondent.

4The applicant opposes the respondent’s request to dismiss. The applicant says she was never advised that her employment was terminated. She submits that the respondent had an ongoing duty to accommodate her disability. Significantly, she states that the respondent did not advise her at the January 2012 meeting that she was fully and finally terminated. Instead, according to the applicant, the respondent informed her that her union and the respondent would continue to assess her situation and to continue to advise her of her employment status. In support of her claim that she continued to be an employee of the respondent, the applicant submitted a copy of a T4 Statement of Remuneration Paid which indicates that she was paid $60.02 during 2013. The applicant argues that the T4 supports her position that she was still employed by the respondent in 2013 and therefore that the Application is timely. In the alternative, she argues that any delay in filing the Application was incurred in good faith due to the respondent’s various errors in communicating with her in regards to her employment status.

ANALYSIS

5Section 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. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents.

6As noted above, the respondent and applicant have different positions as to whether the respondent ever informed the applicant that it was terminating her employment. In light of the copy of the T4 filed by the applicant, it appears that the applicant was in fact still an employee of the respondent during 2013. As a result, I cannot accept respondent’s submission that the last incident alleged in the Application was the applicant’s alleged termination in September 2011 or the meeting in January 2012. The issues of whether or not the respondent had an ongoing duty to accommodate the applicant, and whether it met this duty, are best addressed by the adjudicator hearing the case on its merits.

7Even if I did accept that the respondent did terminate the applicant’s employment, either in September 2011 or January 2012, I accept the applicant’s submission that any delay was incurred in good faith as it was reasonable for her to conclude that she was still an employee of the respondent due to the issuance of the T4 for 2013. In the absence of any indication of substantial prejudice to the respondent, the Tribunal exercises its discretion to allow the Application to proceed.

8In light of the above, I find that the Application is timely as the last incident complained of occurred within one year of the date of the Application. In the alternative, I accept that the applicant had good faith reasons for any delay and that no substantial prejudice will result to the respondent from permitting the Application to proceed.

Order

9For the reasons set out above, the respondent’s Request to dismiss is denied. Since both parties have agreed to mediation, the next step will be for the Tribunal to schedule a mediation in this matter.