HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karen Patchett
Applicant
-and-
Produits Bel Inc.
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Patchett v. Produits Bel Inc.
APPEARANCES
Karen Patchett, Applicant
Self-represented
Produits Bel Inc., Respondent
Marie-Andrée Richard, Counsel
1This Application filed on September 11, 2014, 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”).
2On November 17, 2014, the Tribunal sent to the applicant a Notice of Intent to Dismiss the Application on the basis that it was not filed within one year of the last incident of alleged discrimination and invited the applicant to make written submissions on the issue. These submissions where received on December 24, 2014.
3On January 12, 2015, the Tribunal sent a Notice of Intent to Dismiss for Delay to the parties, advising that a preliminary in-person hearing would be held to determine whether the Application should be dismissed. The parties were directed to file any documents that they intended to rely on within 14 days of the preliminary hearing. The applicant was specifically directed to file medical documentation to support her position, that she could not file her Application within the one year time limit because of her brain trauma.
4The preliminary hearing was held on May 19, 2015, and the Tribunal retained the services of an English-French Interpreter.
The Facts
5The applicant has been employed with the respondent since November 2008. On June 23, 2009, the applicant was involved in a car accident. The applicant states that she has suffered from severe migraine headaches. The applicant alleges that the respondent was not diligent in filing a claim with the Workplace Safety and Insurance Board (“WSIB”). The applicant returned to work for a period of time on a part time basis but then had to take extended time off.
6The applicant also alleges that the respondent failed to provide her with a head-set that she required because of the injuries to her neck. Ultimately, she purchased this head-set herself on October 19, 2010 and the cost was reimbursed by the respondent. She also believes that she was harassed by the respondent, who would repeatedly ask her when she would be returning to work full-time and that she would be fired if she did not do so. The applicant states that her vacation was denied in December 2010. Ultimately, the applicant filed a complaint with the Ministry of Labour on December 13, 2010 and a decision was rendered on April 26, 2011.
7In February 2011, the parties had a meeting with a representative of the WSIB to discuss the applicant’s accommodation. The applicant takes issue with some of the comments made during this meeting. The applicant states that in March 2011, she received a harassing letter from the respondent which asked her to produce a doctor’s note. Eventually, the applicant left work because of the pain associated with her injury to her head and asked for her record of employment so that she could apply for Employment Insurance sick leave benefits. The applicant has not been at work since March 15, 2011.
8The applicant’s WSIB benefits were cut off in December 2011. The applicant has been pursuing her rights to obtain these benefits and a number of decisions have been rendered by Case Managers and AROs in November 2012, August 2013 and January 2014.
9The applicant applied for long-term disability (“LTD”) benefits through Manulife on July 12, 2012. On August 8, 2012, Manulife advised the applicant that it could not process the application because the applicant had not filed a Member claim or a physician’s statement. On July 11, 2013, the applicant was advised that she did not qualify for long-term disability benefits because her claim should have been initiated in 2009. The applicant internally appealed but this decision was maintained by Manulife. The applicant believes that it is the employers’ fault that she did not qualify for long-term disability LTD benefits, since it should have advised her of her rights to apply for LTD benefits in 2009.
10During this time, the applicant had numerous legal advisors and at least one lawyer that she consulted with to obtain WSIB benefits and long-term disability benefits.
11The Application was filed on September 21, 2014.
The Law
12Section 34 states:
(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.
13The applicant alleges in the Application filed on September 11, 2014 that the last incident of discrimination occurred on November 22, 2011. As such, I must next determine whether the delay incurred in filing the Application was in good faith.
14The Tribunal has extensive case law addressing this issue. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.
15The applicant explains in the Application that the reason that she did not apply within one year of the last incident of discrimination is because she was waiting for the outcome of another action and that she was unable to think well enough to realise that she should make an Application under the Code due to her brain injury.
16The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code, will generally not constitute a valid explanation for delay in filing an Application. See, for example, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. Similarly, in this case I do not find it a reasonable explanation that the applicant was waiting for another proceeding to conclude to constitute good faith.
17The other explanation relied upon by the applicant is that she could not file the Application because of her brain injury. When an applicant seeks to rely on a medical reason to support a finding of good faith, the Tribunal has found that the applicant must provide satisfactory medical evidence to support the proposition that they could not have filed the Application in a timely manner because of the disability. The Divisional Court has recently found this case-law to be reasonable in James v. York University, 2015 ONSC 2234 concluding at para 50:
The Tribunal’s decision followed a consistent line of jurisprudence at the HRTO, which stands for the proposition that medical evidence which simply points to a disability is not enough to meet the good faith requirement of section 34(2). The medical evidence must establish a causal link between the disability and the inability to file an application within the one year limitation period set forth in section 34(1) of the Code. There is nothing unreasonable in the application of the Tribunal’s decision in requiring such a causal link.
18The Tribunal directed that the applicant provide medical evidence at the hearing to support her position that her medical condition prevented her from filing the Application. At the hearing, the applicant advised that she was relying on two doctor’s letters already provided to the Tribunal in her written materials. The first is a doctor’s letter dated April 11, 2012, which details the applicant’s medical condition at that time and discusses a number of medical conditions including that the applicant suffers from migraine headaches. The second letter is dated April 24, 2013 and is written by the same doctor. In this letter, the doctor explains that he has not seen the applicant for over one year, but that he is aware that the applicant went to Florida for some tests and that her migraine headaches are somewhat less than before.
19Having considered this matter, I find that there is nothing in these two letters to support that applicant’s assertion that she could not file the Application because of her brain injury. Further, I note that the last medical letter pre-dates that filing of the Application by over one and a half years and there is no medical evidence to address this period of time.
20I also note that during this time, the applicant was able to retain a representative to proceed with the filing of numerous appeals pursuant to Workplace Safety and Insurance Act. The applicant was also able to initiate an internal appeal to Manulife for the denial of her long-term disability benefits. Having considered all of these factors, I am not satisfied that the applicant has provided a reasonable explanation for the delay in filing the Application.
Order
21The Application is dismissed.
Dated at Toronto, this 31th day of July, 2015.
“Signed By”
Geneviève Debané
Vice-chair