Pedro v. Homestead Land Holdings, 2014 HRTO 767

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Guida Pedro Applicant

-and-

Homestead Land Holdings Respondent

DECISION

Adjudicator: Brian Eyolfson Date: May 29, 2014 Citation: 2014 HRTO 767 Indexed as: Pedro v. Homestead Land Holdings

APPEARANCES

Guida Pedro, Applicant Self-represented

Introduction

1This Application was filed on July 25, 2013, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of disability, and reprisal, with respect to contracts and employment. The applicant explains in her Application that she was employed with the respondent as a Building Manager. She alleges that she was unable to work due to illness and her employment was terminated.

2The applicant indicated in her Application that the date of the last event was January 24, 2012. In explaining why she filed the Application more than one year from the last event, the applicant stated that she experienced hardship, including homelessness and long-term health conditions.

3On August 12, 2013, the Tribunal issued a Notice of Incomplete Application (“Notice”), indicating that the Application was incomplete in several areas. The Tribunal also issued a Notice of Intent to Dismiss (“NOID”) the Application on the basis that the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination. The Tribunal directed the applicant to file written submissions responding to the jurisdictional issue of delay.

4The applicant filed completed forms in response to the Notice. With respect to the issue of delay, the applicant submitted that, following the termination of her employment, she was forced to vacate the unit she was living in and became homeless with her family and with a disability. She also submitted that she did not have the support or knowledge needed to begin pursuing this matter.

5By Case Assessment Direction (“CAD”) dated September 17, 2013, the Tribunal directed the applicant to provide further written submissions addressing whether or not the Application should be dismissed because of delay. The Tribunal stated in the CAD that, while delay may be in good faith because of an applicant’s disability, the Tribunal has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. The Tribunal referred the applicant to the following cases: Dionne v. Toronto (City), 2011 HRTO 317; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

6On October 7, 2013, the applicant provided submissions in response to the CAD. She explained that the respondent was both her employer and her landlord, and, when her employment was terminated on January 24, 2012, she was notified that she had seven days to vacate the unit she was living in with her family. She submitted that, on January 29, 2012, her family entered an emergency shelter in another community. On February 28, 2012, they moved to a rental location, but were not able to pay rent successfully. On August 30, 2012, they again entered the shelter. The applicant submitted that, during this time, she had emergency surgery and was admitted to a hospital for a week.

7The applicant submitted further that, on November 30, 2012, her family moved to another rental location, and that she had ongoing health issues, and was unable to maintain paying rent and food expenses. On May 30, 2013, they were again evicted and returned to the shelter.

8The applicant submitted that she has experienced a constant battle of hardship, homelessness and severe health conditions since the termination of her employment with the respondent. She submitted that she has both mental and physical health conditions that have disabled her with respect to many day-to-day activities in her life, including filing this Application. She also submitted that various health prescriptions leave her very fatigued and unable to carry out normal day-to-day duties. She also indicated that she has supporting documents, referring to doctor’s letters and medications, but did not submit any copies.

PRELIMINARY HEARING

9By letter dated October 21, 2013, the Tribunal advised the parties that a half-day hearing would be scheduled to consider whether the Application should not be dismissed on the basis of delay. By Notice of Preliminary Hearing dated November 6, 2013, the Tribunal confirmed with the parties that a half-day hearing was scheduled for March 11, 2014.

10The applicant attended the hearing with her daughter, who assisted her in making submissions. The respondent did not attend the hearing.

11The applicant provided a copy of a letter from a family shelter that her family stayed at. The letter stated that the applicant and her family stayed at the shelter from: January 31 to March 6, 2009; January 30 to February 15, 2012; August 15 to November 27, 2012; and, May 27 to July 27, 2013.

12The applicant’s daughter submitted that they moved into an apartment on February 15, 2012, and the applicant filed for Employment Insurance (“EI”) benefits, but EI benefits were not available to the applicant at the time and the matter is still not resolved. She submitted that they were not able to continue paying rent and had to return to the shelter in August 2012.

13The applicant submitted that she was not confident that she could proceed with this matter without a lawyer, and because she does not have enough education and she was not sure how to follow up. She also submitted that EI benefits were a priority at the time, and she was trying to follow up with EI, but she was experiencing a lot of headaches and started to feel more ill. She also submitted, however, that she obtained some legal advice when she was still living in the community where she was employed by the respondent.

14The applicant submitted that, after they returned to the shelter, she was hospitalized. They then rented a house between November 2012 and May 30, 2013. She submitted that, during this time, she was still under her doctor’s care and realized her health was most important. She submitted that her doctor was concerned that this matter would take over her health, and she tried really hard to just focus on herself. Her husband was working at the time, and she had to recuperate in order to get strength to bring her rights forward. She also submitted that she had to provide paperwork related to her claim for EI benefits and a Workplace Safety and Insurance Board (“WSIB”) claim, for which she is awaiting an appeal. She described the paperwork as overwhelming, and submitted that she had headaches and could not deal with the paperwork.

15When the applicant was asked what she was experiencing medically in the year after January 2012 that prevented her from filing an Application, she submitted that side-effects from her medications led her to not take this matter seriously. She submitted that she queried what to do, referring to all of the papers, or her health. She also submitted that her doctor told her that she should get a lawyer.

16With respect to symptoms, the applicant explained that while she was employed with the respondent there was a flood and she encountered toxic water, which she believes made her ill, resulting in a number of flu-like symptoms. Since the termination of her employment, the applicant explained that she has been experiencing mostly weakness and fatigue.

17The applicant also explained that her hospitalization in 2012 was due to an infection in her throat which required aggressive antibiotic treatment and surgery. It appears from documentation provided by the applicant at the hearing that she was hospitalized on October 4, 2012.

18The applicant also referred to having depression and experiencing “mini-strokes” while she was still employed with the respondent. With respect to depression, although the applicant submitted that she experienced depression throughout the 1.5 years after her employment with the respondent was terminated on January 24, 2012, she also submitted that she was prescribed and took antidepressants for two or three months around August and September of 2011, then stopped taking them. The applicant provided documentation confirming that she was off work for medical reasons in August and September of 2011, and that she was prescribed various medications between May and September of 2011, prior to the termination of her employment on January 24, 2012.

19With respect to the time period between the termination of the applicant’s employment in January 2012, and the filing of the Application in July 2013, in addition to the documentation confirming that she was hospitalized in October 2012, the applicant provided a brief doctor’s note dated July 11, 2012, indicating that she was being seen regularly and would be reassessed in 4-6 weeks. She also provided confirmation that she was prescribed medications between March 2 and 23, 2012, however, the applicant did not explain what these medications were for. She did refer to being put on different antibiotics and a “puffer” during this time. No other documentation related to the January 24, 2012 to July 25, 2013 time period was provided by the applicant.

ANALYSIS AND DECISION

20Section 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 incident in a series of incidents, of alleged discrimination. Section 34(1) of the Code provides as follows:

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.

21The 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.

22If an application is filed beyond the one-year limitation period, based on section 34(2) of the Code, the Tribunal must 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 the present case it is clear that the Application was filed beyond the one-year limitation period in the Code, as the Application was filed with the Tribunal approximately 18 months after the applicant’s employment with the respondent was terminated.

24In 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. 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.

25Factors for consideration in determining whether the delay was incurred in good faith 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.

26In the present case, the applicant relies on her health condition and her family’s housing situation following the termination of her employment as the main reasons in support of her assertion that the delay in filing the Application was incurred in good faith.

27In considering medical reasons for a delay in filing an Application, the Tribunal has required evidence which establishes that the medical reasons prevented the applicant from filing an Application in a timely fashion. At paragraphs 12-13 of Todd v. Rouge Valley Health System, 2012 HRTO 2173, for example, the Tribunal stated:

In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207... In determining whether an applicant’s mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant’s ability to file an application.

The applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by his mental health. As stated in the Tribunal’s decision in Dionne v. Toronto(City), 2011 HRTO 317…, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See also for example Reid v. Ontario March of Dimes; Downer v. Little & Jarrett, 2010 HRTO 992… and Savage v. Toronto Transit Commission….

28In the present case, the medical evidence provided by the applicant concerning her health during the time period subsequent to the termination of her employment on January 24, 2012, is limited and, in my view, does not adequately address the inability of the applicant to file her Application in a timely manner. Documentation indicates that the applicant was prescribed medications between March 2, and 23, 2012; however, it is not clear to the Tribunal what these medications were for. The applicant did say that she was put on different antibiotics and a “puffer” during this time. The applicant also provided a doctor’s note dated July 11, 2012, simply stating that she was being seen regularly and would be reassessed in 4-6 weeks. Finally, the applicant provided confirmation that she was hospitalized on October 4, 2012, which she explained was for treatment, including surgery, related to a throat infection. She earlier submitted that she was hospitalized for one week in 2012.

29As set out above, although the applicant submitted that she experienced depression throughout the 1.5 years after her employment was terminated, she also submitted that she was prescribed and took antidepressants for two or three months around August and September of 2011, then stopped taking them. Based on the applicant’s medical evidence and submissions, it does not appear that she was actually treated for depression after the termination of her employment.

30The applicant also described experiencing mostly weakness and fatigue, as well as headaches, since the termination of her employment. However, based on the limited medical evidence related to this time period, I am not satisfied that the applicant has established that her medical condition was so debilitating throughout the one-year period following the termination of her employment so as to prevent her from filing a timely application with the Tribunal.

31The applicant also refers to homelessness as a reason in support of her assertion that the late filing of her Application was in good faith. It appears, however, that the applicant was residing in an apartment for approximately six months, between mid-February and mid-August 2012. The only medical evidence pertaining to this time period is the confirmation that she was prescribed medications between March 2 and 23, 2012, and the brief July 11, 2012 doctor’s note indicating that she was being seen on a regular basis. The applicant again resided in a shelter between August 15 and November 27, 2012. It appears that, during this time, she was hospitalized for one week, commencing October 4, 2012. After November 27, 2012, the applicant and her family moved to a rental location where they resided until May 27, 2013, when they returned to the shelter. The applicant has not provided any medical evidence in support of her assertion that she could not have filed a timely application with the Tribunal after moving to a rental location on November 27, 2012. I also note that the Application was ultimately filed while the applicant was residing at the shelter. In the circumstances, I am not satisfied that the applicant’s medical condition, combined with her housing situation, provide a reasonable explanation establishing that the delay in filing the Application was incurred in good faith.

32I also note that the applicant submitted that EI benefits were a priority during the time period after her employment with the respondent was terminated. I also understand from the submissions of the applicant’s daughter that, at the time of the preliminary hearing, the EI matter had not resolved. The applicant also submitted that, after she rented a house at the end of November 2012, she had to provide paperwork for both her EI claim, and a WSIB claim for which she was awaiting an appeal.

33In my view, the applicant has not satisfactorily explained why she could pursue other proceedings related to her employment with the respondent, but not pursue her allegations of discrimination pursuant to the Code in a timely manner. See Quimado, above. For the same reasons, I do not accept that the applicant did not have the knowledge needed to begin pursuing this matter as she asserts. In any event, the Tribunal’s case law makes it clear that while ignorance of one’s rights may amount to good faith, an applicant alleging this must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548, at paragraphs 12 and 14, and Lutz v. Toronto, 2009 HRTO 1137. I note that, in the present case, the applicant also submitted that she obtained some legal advice while she was still living in the community where she was employed with the respondent, and that her doctor later told her that she should get a lawyer.

34In all of the circumstances, I am not satisfied that the applicant has established that the delay in filing the Application was incurred in good faith.

35Given 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.

36The Application is dismissed.