Manziano v. Niagara Region (Emergency Medical Services), 2015 HRTO 124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Manziano

Applicant

-and-

Niagara Region (Emergency Medical Services)

Respondent

-and-

Canadian Union of Public Employees, Local 1019

Intervenor

DECISION

Adjudicator: Mary Truemner

Date: January 27, 2015

Citation: 2015 HRTO 124

Indexed as: Manziano v. Niagara Region (Emergency Medical Services)

APPEARANCES

Frank Manziano, Applicant

Self-represented

Niagara Region (Emergency Medical Services), Respondent

Daryn Jeffries, Counsel

Canadian Union of Public Employees, Local 1019, Intervenor

Mona Staples, Counsel

Introduction

1The applicant filed this Application on July 3, 2014. It alleges reprisal and discrimination with respect to employment because of disability. The applicant advised that the last incident of alleged discrimination took place on February 10, 2012, more than two years before he filed his Application.

2Noting that the Application appeared to be filed more than a year after the alleged discrimination, the Human Rights Tribunal of Ontario (“the Tribunal”) issued a Case Assessment Direction (“CAD”) on September 17, 2014, notifying the parties that a preliminary hearing, where evidence could be led, would be held to determine if the Application should be dismissed for delay. The CAD also invited the parties to file submissions which they did. This preliminary hearing took place by teleconference on January 8, 2015.

timing of most recent alleged discrimination

3At the preliminary hearing, before testifying, the applicant explained that he made a mistake on his Application by indicating that the last incident of alleged discrimination took place on February 10, 2012, because a part of his allegations include the termination of his employment which occurred on August 23, 2012. In support of the applicant’s position, I note that a box checked off in the Application does indicate that being fired is part of the allegations.

4The respondent argued that the narrative in the Application supports its position that the date of February 10, 2012 is the last date of discrimination alleged, and objected to what appeared to the respondent to be the applicant changing his position at the last minute, at the preliminary hearing, about the last date of discrimination.

5There is no need for me to decide between the two dates. Even if the termination date in August 2012 were the last date of alleged discrimination or reprisal, the Application was still filed more than a year later, and it does not affect my decision to dismiss, explained in greater detail below, because the applicant has not established that his delay in filing the Application was in good faith.

evidence on delay

6The applicant testied that his reasons for not filing his Application within the one-year limitation period were because his union representative, Dean Mainville, told him that he would address the applicant’s disability in a grievance proceeding where the applicant’s termination was being challenged, and that the applicant could not file a human rights Application at the Tribunal while the arbitration of the grievance was ongoing.

7The applicant testified that he relied on this advice by Mr. Mainville and did not inquire into whether there was a time limit to file an Application at the Tribunal. The first time he became aware that his Application should have been filed within a year of the last alleged incident of discrimination was when he received a Tribunal document after he had filed the Application that referred to the one year limitation period.

8The applicant also testified that he listened to Mr. Mainville give an opening statement at the commencement of the arbitration hearing on Sepbember 17, 2013, and agreed that Mr. Mainville made no mention of disability, but he also stated that the last day of the hearing was the first time he realized that Mr. Mainville was not going to argue that disability affected his work performance which the respondent cited as a reason for the termination. Even though he knew that his disability was not argued at the arbitration, he decided to wait for the arbitrator’s decision on the grievance (“the Award”) before doing anything else to allege that he had been discriminated against because of disability. The last day of the arbitration was May 14, 2014, and the Award was issued on July 2, 2014. The Award denied the grievance.

9The applicant also testified that he went to Mr. Mainville’s office when the Award was issued, and asked for help in filing a human rights Application, but that Mr. Mainville told him the union would not help, other than to enforce any order that he might obtain from the Tribunal.

10The applicant called Mr. Mainville as a witness. Rather than supporting the applicant’s evidence, Mr. Mainville testified that he never told the applicant that he could not or should not file an Application at the Tribunal while the grievance proceeding was ongoing. He testified that he never told the applicant that if he filed an Application at the Tribunal, then the applicant would not be permitted to continue with the grievance process. He testified that saying so would make no sense, because he understood that a human rights Application could be filed simultaneously with a grievance, and he understood that the Application would be held in abeyance as the grievance proceeded.

11Mr. Mainville reiterated that he never spoke to the applicant about, nor did he give the applicant advice about filing a human rights Application before or during the arbitration of the grievance. He said that the first time he spoke to the applicant about filing any human rights claim or Application was after the Award was issued in July 2014.

Decision and analysis

12An application that is filed more than one year past the last incident of alleged discriminatory conduct may be barred by virtue of s. 34 of the Code, which provides:

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.

13It is common ground that the Application was filed outside the one-year time limit required by s. 34(1). The question for the Tribunal, therefore, is whether the applicant has established good faith and lack of substantial prejudice as required by s. 34(2). While the respondent asserted that it was prejudiced by the delay, the focus of the preliminary hearing in this matter was whether the delay was incurred in good faith.

14As noted in the decision of Hollett v. Unifor, 2015 HRTO 29, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner, and waiting for the conclusion of another legal proceeding will generally not be a valid explanation for delay in filing an Application before this Tribunal. The applicant’s position is that his reasonable explanation for delay is that his union representative misled him so that he did not file his Application in a timely manner.

15Given the testimony of Mr. Mainville which denies that he advised the applicant that he could not file an Application earlier, I must determine who is more credible and upon whose testimony I should rely.

16On the question of assessing credibility in witnesses, I refer to the well-established principles articulated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at pages 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

17Other factors for assessing credibility include the internal consistency of a witness’ evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence. (See Cugliari v. Telefficiency Corporation, 2006 HRTO 7).

18In cross-examination, the applicant could not say when he first met Mr. Mainville to discuss his grievance and the upcoming arbitration. He could not remember whether it was the same year that the respondent terminated his employment or the year after.

19The applicant was very confused about what it was that Mr. Mainville said to him about filing an Application, and the applicant changed his story during cross-examination. He testified that Mr. Mainville told him that he could not file a human rights Application if he wanted the arbitrator to hear the disability issues, but, at another point, he testified that Mr. Mainville told him that if he filed an Application at the Tribunal alleging discrimination because of disability, then he would not be able to pursue a grievence at all, even if that grievance made no mention of disability. He was apologetic about being confused, but explained that he could not remember well.

20The applicant originally testified that when the arbitration ended, no disability or medical issues had been raised, although he recalled that his union representative tried to raise a Memorandum of Agreement signed February 14, 2012 (“the agreement”) and how disability was an issue in the discipline to which it related, but the arbitrator did not allow that questioning. Later the applicant testified that he could not remember what exactly Mr. Mainsville said at the arbitration with respect to the agreement. He admitted that it was entered as an exhibit at the arbitration. It was also entered as an exhibit at the preliminary hearing before me, and it refers to the applicant’s medical issues.

21The applicant did not mention any other exceptions with respect to his statement that disability or medical issues were not raised at the arbitration.

22Mr. Mainville, on the other hand, was clear in his recollections of his meetings with the applicant and what happened at the arbitration. He remembered discussing with the applicant his disabilities in meetings prior to arbitration, and receiving a medical note dated February 10, 2012 from the applicant that the applicant had tried to give to the respondent after the incidents that led to the agreement. Mr. Mainville testified that he would have spent time at the arbitration on the agreement, the note and its connection to the discipline and the later termination, except that the arbitrator upheld the objections of the employer and Mr. Mainville was not permitted to do so due to objections by counsel for the employer. Mr. Mainville testified that the applicant took the position that he signed the agreement under duress, and that alleged fact of being forced to agree was what the applicant was characterizing, in the context of the grievance, as contrary to his human rights.

23Mr. Mainville testified that he did however deal with the applicant’s medical condition during the arbitration process with respect to the applicant’s Crohn’s disease because the applicant had told him that it was the pain from the Crohn’s that was the issue with respect to his work performance in June 2012. At the hearing, he dealt with how the applicant’s Crohn’s related to the applicant’s need to use the washroom upon arrival at the hospital with a patient, and how he left the patient for a while. Mr. Mainville remembered that the applicant was cross-examined at the arbitration on those events and his need to use the washroom. Mr. Mainville remembered that the applicant testified during cross-examination at the arbitration about his embarrassment of having to use the washroom and about how he did not tell his employer at the time. Mr. Mainville testified that he never brought up any other disability than Crohn’s.

24Mr. Mainville remembered his discussion with the applicant, after the Award was issued, about filing a human rights Application, but he never gave the applicant any advice about filing an Application prior to that time. When the question was clearly put to him by the applicant, Mr. Mainville stated, “I did not at all tell you that you could not file a human rights complaint if you wanted to proceed with a grievance. The human rights complaint could be filed simultaneously and held in abeyance, but we never talked about it.”

25The applicant’s admitted inability to remember and his demonstrated confusion at the preliminary hearing about what Mr. Mainville said to him leads me to believe that Mr. Mainville is the more reliable witness in recalling conversations with the applicant, the grievance process and references to disability. I note that the applicant contradicted himself in some of his testimony whereas Mr. Mainville never did, and was able to provide details of what happened in conversations and at the arbitration. The applicant could not.

26I find that the evidence does not support the applicant’s position that Mr. Mainville gave him advice that he could not or should not file an Application at the Tribunal while the grievance process was ongoing. I am not prepared to accept the applicant’s testimony in this regard, and prefer the evidence of Mr. Mainville. It is, therefore, not necessary to consider the applicant’s legal argument concerning reliance on incorrect advice and whether such reliance would constitute good faith.

CONCLUSION

27In conclusion, I find that the evidence does not establish that the applicant had received advice from his union representative not to file an Application at the Tribunal while his grievance proceeding was ongoing. It was unreasonable for the applicant to file his Application late on the basis of advice that was not given. Although the applicant may have hoped to have issues of disability adjudicated in the grievance process, and it turned out that they were not, waiting for other legal proceedings to conclude before pursuing one’s rights under the Code, as stated above in reference to Hollett v. Unifor, supra, does not generally constitute a valid explanation for delay in filing an Application. See also, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There were no extenuating circumstances in this case which prevented the applicant from filing a separate human rights Application during the period when his grievance was being pursued, and I do not find that any wait by the applicant for the Award constitutes good faith under s.34(2).

28I find that any claim of being ignorant of whether or not the applicant could file an Application during a grievance proceeding also is not a reasonable explanation for a failure to act in a timely basis. I appreciate that the applicant might have wondered what effect the grievance process might have on this Application; however, there is no reliable evidence that he took reasonable steps to answer those questions.

29The applicant’s position is that he did not know that there was a limitation period set by the Code until after he filed his Application, but ignorance of one’s rights under the Code does not, except in the most exceptional of cases, constitute a reasonable explanation for failing to meet the time limits. See, for example, Lutz v. Toronto, 2009 HRTO 1137. There is no evidence that the applicant inquired about his rights under the Code until after the Award was issued, and I find this is not a case to make an exception to the Tribunal’s line of cases which do not allow ignorance of one’s rights to constitute good faith under s.34(2).

30I am not satisfied that the applicant has established a good faith explanation for the extensive delay in filing his Application. Given this finding, I do not need to consider whether the respondent would be prejudiced by the delay. The Application is dismissed.