Cosgrave v. Agropur Cooperative, 2015 HRTO 1021

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Cosgrove

Applicant

-and-

Agropur Cooperative

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: July 30, 2015

Citation: 2015 HRTO 1021

Indexed as: Cosgrave v. Agropur Cooperative

WRITTEN SUBMISSIONS

Jacqueline Cosgrove, Applicant

Self-represented

Agropur Cooperative, Respondent

Anne K. Gallop, Counsel

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Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

background

2The applicant indicates that she commenced employment with the respondent in September 2008. She alleges that she “developed mental health concerns” in August, 2011 which affected her ability to work. Over the course of the following years she made a number of failed attempts to return to work and in April 2013 she took a leave of absence.

3On May 30, 2013 the respondent’s insurer denied the applicant’s claim for short term disability benefits on the basis that there was a lack of medical evidence supporting her need to be away from work. On June 3, 2013, the respondent issued a letter addressed to the applicant setting out its expectation that the applicant would return to work on June 6, 2013. The applicant alleges that she remained medically unable to return to work and, consequently, did not attend at work on June 6, 2013. On June 6, 2013 the respondent issued a letter to the applicant indicating that the applicant had not returned to work on June 6, 2013 as requested and that the respondent had “no choice but to conclude that the [applicant] resigned from the Company.” The letter concluded that: “Any outstanding monies – along with your Record of Employment – will be forwarded to you shortly”.

4In September 2014, the applicant’s treating physician cleared her to return to work on a gradual basis. On September 29, 2014, the applicant provided the respondent with a gradual return to work plan. The respondent responded on October 1, 2014 that the applicant had resigned from the company as of June 6, 2013.

5The Application was filed on March 18, 2015.

6On July 14, 2015, the Tribunal issued to the applicant an “Additional Notice of Request to Dismiss” (“Notice”) stating it appears that “the Application was filed more than one year after the last incident of discrimination…and you do not appear to have cited facts that constitute “good faith”…”. The Notice requested submissions from the Applicant.

dismissal

7For the reasons set out here, I have determined that the Application is untimely and should be dismissed for delay.

analysis

Timeliness

8Section 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. The first issue, therefore, that the Tribunal must determine is the date of the last incident of discrimination.

9The applicant submits that the respondent’s refusal to return her to work on the gradual return to work plan on October 1, 2014 was the last incident of discrimination which, if so, makes her Application, having been filed on March 18, 2015, timely.

10The respondent’s position is that the last incident of alleged discrimination occurred on June 6, 2013 when the applicant’s employment was terminated approximately 21 months before the Application was filed.

11Having considered this matter, I find that there is no merit to the applicant’s submission that the last incident of discrimination was October 1, 2014, almost 16 months after the last incident of alleged discrimination when the respondent did not return her to work on a gradual return to work plan. This is so because I find that the employment relationship ceased on June 6, 2013 and that this is the last incident of discrimination. As of that date the applicant knew she would not be getting any more work from the respondent. In these circumstances, the applicant cannot unilaterally create a series of events by asking to be returned to work almost 16 months after the last incident of alleged discrimination. To accept the applicant’s argument would in effect render the time-lines imposed by the Code meaningless and capable of revival by the applicant simply by asking to return to work at any time following an allegedly discriminatory termination.

12Therefore, I find that the last incident of alleged discrimination occurred on June 6, 2013 and that this Application was filed beyond the one year time-limit.

Good Faith

13The Tribunal has the jurisdiction to accept an Application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. The Tribunal has extensive case law which addresses the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay. Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School board, 2008 HRTO 424.

14However, the applicant has taken the position that she filed the Application within 12 months of the date of the last incident and has not asserted that any delay was incurred in good faith.

15Having 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.

16The applicant has indicated that she had her “mental health concerns” but she has not alleged that these concerns were a factor in her delay in filing her Application nor has she filed any documentation or particulars supporting such a position.

17Moreover, the applicant has not challenged the respondent’s claim that following her cessation of employment with the respondent she actively pursued a claim for long-term disability benefits, through legal counsel, against the respondent’s insurer. This course of action would appear to be inconsistent with being unable for medical or other reasons to pursue a claim in a timely manner.

18In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code.

19The Application is dismissed.