Pauline Smith v. Rock Tenn and Darrin Osmond, 2014 HRTO 729

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pauline Smith

Applicant

-and-

Rock Tenn and Darrin Osmond

Respondents

DECISION

Adjudicator: Alison Renton

Date: May 21, 2014

Citation: 2014 HRTO 729

Indexed as: Smith v. Rock Tenn

WRITTEN SUBMISSIONS

Pauline Smith, Applicant

Laura McCleary, Representative, and then, Self-represented

1This is an Application filed on October 17, 2013, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability, sex (including sexual harassment), and reprisal. The applicant identifies July 25, 2012 as being the date of the last incident on which the Application is based. The Application has not been sent to the respondents for Response.

2The Tribunal sent the applicant a Notice of Intent to Dismiss ("NOID") which stated that the Application appeared to be outside of the Tribunal's jurisdiction because it was filed more than one year after the last incident of discrimination described in the Application and did not appear to cite facts that constitute "good faith" within the meaning of the Tribunal's case law. The Tribunal requested the applicant to provide written submissions addressing the delay argument.

3The applicant filed submissions subsequent to the NOID. She submitted that she was admitted to hospital on July 26, 2012 and was discharged on August 22, 2012. Following her discharge, she participated in various day programs pertaining to her medical issues which continued for a period of approximately six to eight weeks, ending sometime in October 2012. She submits that the delay in filing her Application is less than three months and was incurred in good faith as it is due to the hospitalization and treatment that she underwent. She did not provide any medical documentation in support of her assertions.

4Despite July 25, 2012 being identified as the last date, it does not seem that there are any allegations pertaining to either respondent attached to this date. In fact, most of the allegations do not have specific dates attached to them, but rather generalized periods of time. Apart from one comment being attributed to "near the end of February 2010", the allegations pertaining to sexual harassment appear to be for the period 2007 to 2011. The allegations pertaining to disability, which arose because of a workplace injury on September 22, 2009, appear to be September 2009, 2011 and 2012. The allegations pertaining to reprisal appear to be based upon a layoff that occurred in March 2010 or October 2010 to July 2012 following the settlement of another application filed by the applicant. The date of that settlement is not specified.

5In a Case Assessment Direction dated January 10, 2014 ("the CAD"), the Tribunal again identified a possible delay issue. It also stated that it appeared that some or all of the applicant's allegations pertaining to disability were the same as those alleged in another application filed by the applicant, which was Tribunal file 2010-06864-I. The Tribunal advised the applicant that it has held that the filing of the second application may amount to an abuse of process such that the second application is dismissed, and referred to Matthews v. Chrysler Canada Inc., 2013 HRTO 225, and Shi v. Holcim (Canada) Inc., 2013 HRTO 306, as examples of this determination.

6At para. 8 of the CAD, the Tribunal stated that before determining the next steps in the Application, if any, the applicant was directed to provide the following:

a. Any medical documentation upon which the applicant relies in support of her assertion that she was medically incapable of filing her Application in a timely manner;

b. The specific dates upon which the sexual harassment allegations are based;

c. The specific dates upon which the disability allegations are based;

d. The specific dates upon which the reprisal allegations are based, including the date of the layoff and recall, if any;

e. Submissions about whether any or all of the applicant's allegations are within a "series of incidents" within the meaning of section 34(1)(b), which was cited within the CAD as well as some case law;

f. Submissions as to whether the corporate respondent's name was previously Smurfit Canada and whether it was changed to Rock Tenn, and,

g. Submissions about whether it would be an abuse of the Tribunal's process to permit the application to rely upon allegations pertaining to disability in this Application in light of the application she filed which was Tribunal file 2010-06864-I.

7The applicant's then representative filed submissions on behalf of the applicant addressing these issues. With respect to the dates upon which the sexual harassment allegations were based, she advised that because of the applicant's state of mind, she was not able to fully recall the exact dates of the sexual harassment, but it contributed to the hospitalization and was when the personal respondent worked on shifts with the applicant. The reprisal allegations were based on layoffs dated March 18, 2010, October 15, 2010 and January 20, 2012. The corporate respondent failed to accommodate the applicant because of disability with the applicant's doctor completing a functional abilities form on January 4, 2012. With respect to harassment, the applicant stated that she experienced it for an extended time frame, and the events were continuous. She did not provide any dates for the alleged harassment.

8The applicant's representative also advised, "We are currently awaiting additional clinical records from the applicant's therapist that are related to the reason for late filing. The records will be forwarded as soon as they are received". The applicant's representative subsequently advised that she was no longer representing the applicant.

9A second CAD was issued on March 31, 2014 ("the March CAD"), directing the applicant to provide, no later than April 30, 2014, the additional medical documentation upon which she was relying in support of the reason(s) for the late filing of her application. In response, the applicant filed some notes of her counsellor for a period of approximately June to October 2013 as well an email containing submissions. In that email, the applicant submitted that she had to be completely away from the respondents before she felt safe enough to share the sexual harassment. She advised her counsellor on September 16, 2013 of the sexual harassment, after she received verbal notice from the Workplace Safety and Insurance Board ("WSIB") about her benefit entitlement. On May 16, 2014, the applicant sent an email to the Tribunal pertaining to termination and severance pay she received from the corporate respondent and raised some income tax issues.

10All of the material that the applicant has submitted has been carefully considered by the Tribunal.

11For the reasons set out below, the Application is dismissed because it is untimely. Accordingly, I do not need to consider the other issues raised in the CADs.

delay

12Sections 34(1) and (2) of the Code state:

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.

13Section 34(1) is a mandatory limitation period established under the Code. The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegations was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2008 HRTO 1241.

14While the Tribunal accepts that a delay may be in good faith because of an applicant's medical condition, it has consistently ruled that it requires medical evidence that the disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example, Forde v. Avon Maitland District School Board, 2011 HRTO 1664, and the cases cited therein at para. 39.

15In this case, from reading the Application and the submissions that were subsequently filed by the applicant, the last date upon which the Application is based is January 20, 2012, when she was laid off work. In her Application, she alleged she was subjected to sexual harassment from 2007 to 2011 and submitted, in her written submissions, that she could not remember all the dates, but that it was "continuous". The dates she identified for discrimination due to disability are September 2009, 2011 and 2012. The allegations pertaining to reprisal are March 19, 2010, October 15, 2010 and January 20, 2012. Based upon this information, the applicant had one year from January 20, 2012, to file an Application. She did not file her Application until October 17, 2013, and accordingly it is approximately nine months beyond the mandatory one-year limitation period set out in section 34(1).

16The applicant also appears to suggest that she worked until July 25, 2012, following which she was hospitalized and never returned to work after that date. However, there are no specific allegations of harassment or discrimination associated with that date. Even if I accept July 25, 2012 as being the last date upon which the Application, her Application was filed almost three months after the mandatory one-year limitation period set out in section 34(1).

17The applicant asserts that her medical condition attributed to her delay in filing her Application. In this regard, she made written submissions, provided documentation from the hospital and her subsequent medical treatment, and provided an excerpt of clinical notes from a counsellor.

18The documentation from the hospital and her subsequent medical treatment run from the period July 2012 to October 2012. These demonstrate why the applicant did not file an Application before October 2012, but they do not address the period January 2013 to October 17, 2013, when her Application was eventually filed.

19The counsellor's clinical notes start from an undated entry before June 17, 2013 and end October 4, 2013. They are not addressed specifically for the Tribunal. The notes contain references to other legal and personal issues with which the applicant was dealing, and identify some other support persons or organizations with whom the applicant was dealing. They also say, for the entry September 16, 2013, "...has been disclosing and working through CSA issues and multiple incidents of sexual harassment in multiple workplaces with her ERMH therapist [who is named];..." and "May contact a law firm to see if they would represent her ... to sue former employer for sexual harassment by a supervisor, and sue her union for lack of support". The June 17, 2013 note indicates that she "continues to see" the ERMH therapist.

20What the notes do not indicate is why the applicant was unable to file an Application in a timely manner. Instead, the notes suggest that the applicant was waiting for a determination as to whether she would be approved for long term disability benefits or benefits under the Workplace Safety and Insurance Act, 1997, before filing her Application. Like in Hunter v. Thompson Electric Ltd., 2013 HRTO 2118 at para. 12, the applicant's actions suggest that she was aware that she had rights with respect to her medical condition, and other issues, but she has not provided a reasonable explanation as to why she did not assert her rights under the Code with respect to disability, sexual harassment and reprisal. Furthermore, it appears that the applicant was speaking with another therapist, the ERMH therapist, about her allegations of sexual harassment. No notes were provided by the ERMH therapist to explain why the applicant was not able to file an Application in a timely manner.

21The applicant's March 14, 2014 email is not responsive to the issues identified in the CAD.

22Accordingly, the applicant's Application is dismissed as being untimely.