Montgomery v. Busy Bee Tools, 2014 HRTO 965

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shannon Leigh Montgomery

Applicant

-and-

Busy Bee Tools

Respondent

DECISION

Adjudicator: Daniel Randazzo

Date: July 2, 2014

Citation: 2014 HRTO 965

Indexed as: Montgomery v. Busy Bee Tools

APPEARANCES

Shannon Leigh Montgomery, Applicant

Self-represented

Busy Bee Tools, Respondent

Manju Patel, Representative

1This is an Application dated June 28, 2013 but received by the Tribunal on August 15, 2013 and filed under section 34 of Part IV 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.

2By Case Assessment Direction (“CAD”) dated November 25, 2013, the Tribunal directed that a preliminary hearing be held in this matter. The CAD stated as follows at paragraphs 7 to 9:

7. In these circumstances the Tribunal directs as follows:

8. The Tribunal will send a copy of the Application, the documents filed with the Tribunal by the applicant, and a copy of this Case Assessment Direction, to the respondent, using the contact information provided by the applicant. The respondent is not required to file a Response at this time. The respondent is required to confirm the correct name of the respondent’s company and the appropriate contact person. The respondent is required to provide this information by December 13, 2013.

9. After reviewing this information, the Tribunal will schedule a one-hour telephone conference call hearing with the applicant and the respondent. The purpose of this hearing will be to clarify the applicant’s allegations and her explanations for the apparent delay in filing the Application.

3The preliminary hearing was held on March 17, 2014 at which time I heard from the applicant and the applicant’s mother. Although invited to do so, the respondent choose not to make any submissions with respect to the reasons for delay in filing the application.

BACKGROUND

4The applicant was employed by the respondent, Busy Bee Tools, from August 20, 2009 to September 26, 2011. During the course of her employment the applicant states that she was employed as a cashier performing various tasks including, checking customers out at the cash desk, daily inventory, checking and replacing price tags, restocking shelves and basic housekeeping duties. While employed with the respondent the applicant developed pain in her right wrist. The applicant claims that she reported the issues she was having with her wrist to her supervisor but her requests for accommodation were ignored by her employer. Eventually, the applicant required surgery to repair her wrist. As a result of the surgery and recovery period, the applicant was unable to work from June 16, 2011 to September 26, 2011. Despite the surgery and physiotherapy the applicant lost approximately 65% of the use of her right (and dominant) hand.

5The applicant claims that when she returned to work on September 26, 2011 she provided the respondent with a doctor’s note which indicated that she would require “light duties” for two weeks. Upon her return, the applicant states that she was told by her supervisor that she could not return to work until her hand was 100%. September 26, 2011 was the applicant’s last day of work.

6The applicant states that on an unspecified date in October 2011 she filed an application with the Tribunal claiming discrimination on the basis of disability. The applicant could not recall the date the application was sent but testified that she recalled that the application was sent by regular mail. The applicant stated that she then called the Tribunal approximately one month later and was told that the application had not been processed. The applicant states she then called the Tribunal again in January 2012 and was told that the Tribunal could not locate the application. The applicant claims that she was told to resubmit her application.

7It was the applicant’s evidence that she then resent her application to the Tribunal in February 2012 – which she states was once again sent by regular mail. The applicant then says she waited until April 2012 to call the Tribunal. She claims to have been advised that the Tribunal had received the application but that there “was no activity on it”.

8The applicant stated that eventually she got through to someone at the Tribunal who told her that she had to file a Form 1A which she states she promptly did in June 2012. She states she followed up with a telephone call in July 2012 but was once again advised that her application could not be located.

9By letter dated September 12, 2012 the applicant was advised by the Canadian Human Rights Commission (“CHRC”) that they had received her Human Rights Tribunal of Ontario complaint form documents on August 13, 2012. The CHRC advised the applicant that the CHRC seemed to have received the documents in error and that they were being returned to the applicant. The CHRC provided the applicant with the Tribunal’s correct address and contact information.

10Following receipt of the CHRC’s correspondence and the return of the documents she had apparently sent to them, the applicant testified that she then “refiled” her application with the Tribunal. The Tribunal’s file confirms that by letter dated October 19, 2012 the Tribunal advised the applicant that on October 15, 2012 the Tribunal had received from the applicant a Supplemental Form (Form 1A). The applicant was advised that the Supplemental Form was not an application and that the Tribunal could not process an application without an Application Form (Form 1). The applicant was provided with a Form 1 and Form 1-A and directed to the Tribunal’s website. The Applicant was advised in the October 19, 2012 correspondence from the Tribunal that the date of her Application would be the date the HRTO receives a Form 1 and the resubmitted Form 1-A.

11As of October 19, 2012 the applicant was aware that she had yet to properly file her Application with the Tribunal, she was informed with respect to the proper form and the proper address to send the application. The applicant was also aware that her filing date would be the date the Tribunal received her Application.

12The applicant states that it was in November 2012 that, for the first time, she filed a Form 1 with the Tribunal. She states that she followed up on her Application in January 2013 but was told that the Application had yet to be processed. She then states that she waited until May 28, 2013 to make another enquiry with respect to her Application. The applicant explains that she had surgery between January 2013 and May 28, 2013 and the surgery was the cause of the delay between January 2013 and May 28, 2013.

13The applicant states that on May 28, 2013 she was advised that the Tribunal could not locate her Application and as a consequence she states that she refiled another application on June 28, 2013. The June 28, 2013 Application was received by the Tribunal on August 15, 2013 following which the applicant was advised that the Application was incomplete. The Tribunal’s files confirm that a “Confirmation of Receipt of Application” was sent to the applicant by the Tribunal on August 22, 2013, followed shortly thereafter on August 30 by a “Notice of Incomplete Application”. The applicant states she completed her Application on September 9, 2013, although the Tribunal’s records indicate a brief extension of time to complete the application was requested on September 17 and the completed forms were received shortly thereafter on September 27, 2013.

14The applicant did not provide any details, documents or explanations for the delay between May 28, 2013 (the day she says she was informed that her November 2012 Application had not been received by the Tribunal) and June 28, 2013 (the day she claims to have sent her Application by regular mail to the Tribunal). Nor did the applicant provide any details, documents or explanations for the delay between June 28, 2013 (the day she claims to have mailed her Application) and August 15, 2013 (the day the applicant’s Application was received by the Tribunal). The documents demonstrate and the applicant confirms that she received the Tribunal’s October 19, 2012 notice that she had improperly filed a Form 1A and the Tribunal’s notice of August 30, 2013 advising the applicant that her Application was incomplete. Once in receipt of the Tribunal’s August 30, 2013 correspondence the applicant was able to respond and rectify the Application’s deficiencies.

DECISION

15Section 34 (1) and (2) of the Code provides that:

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.

16The applicant did not allege that there is no delay or that the delay was not excessive. The applicant’s focus was on the explanation for the delay and she contends that the delay was in good faith. As the allegations fall outside the one year time limitation, it is the applicant’s onus to establish that the delay was incurred in good faith.

17The Code clearly states in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal sets out what is required to establish that delay has been incurred “in good faith”:

In my view, where an Applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the Applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applications to provide a reasonable explanation for the delay

18The delay in this matter is excessive. Although the applicant may have made attempts to file her Application earlier, the Application was not actually filed with the Tribunal until August 15, 2013 approximately 23 months after September 26, 2011 (the date of the last event). Furthermore, the application was not filed until 11 months after the applicant had been advised that her first application had been mistakenly filed with the CHRC.

19The applicant has argued that she tried on several occasions to file an Application prior to August 13, 2013. The applicant argues that she tried to file an Application in October 2011, February 2012, June 2012, October 2012, November 2012 and then in June 2013. The applicant argues that on each occasion the Application went missing, was delivered to the wrong organization (CHRC) or was on the wrong form.

20Given the length of time it is understandably difficult for the applicant to provide a clear and cogent explanation for the many delays and improper filings. However based upon the documents, it is evident that the Tribunal did not receive what the applicant says were her October 2011, February 2012 and June 2012 attempts at filing an Application. It is clear from the September 4, 2012 correspondence from the CHRC that the CHRC received the applicant’s June 2012 application documents. Thus it is clear from the applicant’s own evidence that on at least one of the instances she says she attempted to file an Application with the Tribunal she sent the documents in error to a different organization. It is also clear that the applicant was aware in early September 2012, prior to the passing of the one year statutory time limit, that the Tribunal had not received a proper Application.

21By October 19, 2012 the applicant was aware that she was required to file a Form 1 Application (not a Supplementary Form 1A) and was required to send it to the Tribunal. The applicant waited until an unspecified date in November 2012 to, for the first time, file a Form 1. One would think that given the difficulties the applicant alleges she experienced in filing, the applicant would immediately seek to confirm with the Tribunal whether the Application had been received. Instead the applicant waited, on her own evidence, until January 2013 to attempt to confirm whether the Tribunal had received her application. When given a negative response the applicant then waited an additional five months before contacting the Tribunal. The applicant states that she had surgery between January 2013 and May 28, 2013 and the surgery was the cause of her delay in contacting the Tribunal. The applicant did not provide any details of the surgery, including the date of the surgery, nor did the applicant provide any medical evidence which would substantiate her claim that her surgery prohibited her from contacting the Tribunal between January 2013 and May 28, 2013.

22To compound matters, the applicant delayed an additional four weeks between May 28, 2013 (the day she says she was advised that the Tribunal did not receive her purported November 2012 Application) and June 28, 2013 (the date the applicant’s Application was signed by the applicant). The applicant has provided no explanation for this four week delay and has provided no explanation for the delay between June 28, 2013 and August 15, 2013, the day the Application was received by the Tribunal.

23The applicant has not established that the delay in filing has occurred in good faith. The fact that one set of documents she says she attempted to file with the Tribunal was received by the CHRC and not the Tribunal and the fact that the applicant filed a document with the Tribunal in October 2012 (i.e. the wrong form) may explain some of the delay in filing up to and including the undocumented attempt she says she made in November 2012. It is questionable whether the delay up to this point could constitute a good faith delay within the meaning of the Tribunal’s case law; however, even assuming it could the applicant has not provided any documents or satisfactory explanations which establish that the delay between January 2013 and May 28, 2013, the delay between May 28, 2013 and June 28, 2013 and finally the inexplicable delay between June 28, 2013 and August 15, 2013 occurred in good faith.

24I therefore find that the applicant’s delay in filing was not incurred in good faith within the meaning of the Tribunal’s case law. Having found that the delay was not incurred in good faith I do not have to address the issue of substantial prejudice to the respondent.

SUMMARY

25The Application is dismissed on the basis of delay.

26I am not seized.