McClain v. 533438 Ontario Ltd. o/a Northlander Industries, 2015 HRTO 1466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald James McClain

Applicant

-and-

533438 Ontario Ltd o/a Northlander Industries

Respondent

DECISION

Adjudicator: David Muir Date: November 2, 2015 Citation: 2015 HRTO 1466 Indexed as: McClain v. 533438 Ontario Ltd. o/a Northlander Industries

APPEARANCES

Donald McClain, Applicant Mathew D. Reid, Counsel

533438 Ontario Ltd 0/a Northlander Industries, Respondent Lisa Kwasek, Counsel

1This Application alleges discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the "Code"). Specifically, in his Application, the applicant alleges that the respondent failed to provide reasonable accommodations for the applicant and terminated his employment because of his disability.

2In a Case Assessment Direction issued on April 8, 2015, the Tribunal directed that a preliminary hearing be held to hear submissions about the respondent's request that the Application be dismissed on the basis that it is untimely.

3The preliminary hearing was held on October 21, 2015, in London. All parties participated. I heard the evidence of four witnesses, the applicant and three individuals with some knowledge of his circumstances. Each of the witnesses adopted a detailed witness statement as their evidence subject to the questions asked of them by all parties at the hearing.

4For the reasons that follow the Application is dismissed.

5Sections 34(1) and (2) of the Code provide:

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.

6For purposes of this Decision the following facts are assumed to be true. The applicant was employed by the respondent for not quite three years. He was injured on the job and suffered a blow to the head. He was diagnosed as having been concussed. He was advised that there was very little to be done by way of treatment except for rest and time. His symptoms of headaches, poor concentration, memory problems and fatigue were at first significant and persisted for some period of time and then lessened as time passed.

7The ultimate issue for determination in this case is whether or not there is sufficient evidence to establish that the applicant's cognitive impairments were sufficiently severe and long lasting that he was prevented from filing the Application in a timely way.

8The applicant was terminated from his employment on January 27, 2013. This Application was filed on September 24, 2014.

9The Application was filed almost eight months after the one year limitation period had expired. The applicant argued that he experienced such significant cognitive impairment as a result of his head injury that he was unable to enquire into his rights and file this Application in a timely way. The respondent argues on the other hand that while the applicant may have experienced some symptoms following a head injury there is insufficient evidence to establish that the applicant was unable to file his Application in a timely way.

10I agree with the respondent in this case. I do accept that the applicant likely experienced some disorienting symptoms as a result of the blow to the head he suffered in December 2011. I also accept that these symptoms can be long lasting. The difficulty is that there is insufficient evidence of significant impairment of the applicant's level of functioning beyond a few months after the incident and evidence that he had largely returned to normal functioning within a year of the incident giving rise to this Application. I also agree that the test to establish a good faith explanation for the failure to file a timely Application is a high one and requires evidence of a substantial inability to initiate the process.

11In Dionne v. Toronto (City) 2011 HRTO 317 the Tribunal commented on what was required of an applicant seeking to establish as a good faith a disability:

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 disability was so debilitating to prevent and applicant from pursuing his or her legal rights under the Code: see for example Reid v. Ontario March of Dimes, 2008 HRTO 2207; Downer v. Little & Jarrett 2010 HRTO 992 and Savage v. Toronto Transit Commission 2010 HRTO 1360.

12In this case there is no such evidence. I note that immediately after the injury he was able to absorb and respond to the denial of his Workplace Safety and Insurance Act ("WSIA") claim in early January 2013, identify that he had a time limit to meet to appeal the decision and make a note on his calendar that he had until the end of June 2013 to respond. This was when his symptoms were the most severe on his and his friends' evidence. Moreover, he was able to remember to send in his appeal in June 2013, not once but twice to ensure that it was received.

13The applicant's assertion that he was prevented from filing this Application because of allegedly serious cognitive impairments is also contradicted by his other activities during the intervening 20 or so months. The applicant moved from Exeter to London in May of 2013. He did so for a number of reasons he testified – there were decisions to make about his life that had to be made and he made them including giving up his home which he could no longer maintain and move into an apartment. He agreed that one of the reasons was the better work opportunities in London. He agreed that he was looking for work and that his symptoms were lessening such that work was a possibility by mid to late 2013. He in fact found work in early 2014 about a year after his termination by the respondent. He was employed as the night manager of the caretaking crew of 50 individuals at Fanshawe College for four months without any difficulty according to the applicant. In my view, employment of this kind is entirely inconsistent with a claim that his cognitive impairments were such that he was prevented from filing the Application.

14I find that the applicant did not file this Application until he did because it never crossed his mind that he had a human rights claim until September 2014 when he met with a lawyer about his WSIA matter. The applicant testified when asked why he had not make the claim prior to September 2014 responded that he had been waiting on some word about his WSIA appeal for a long time, so long that the called the Workplace Safety and Insurance Board and was told that there were no time limits on WSIA appeals. It is not clear what that meant given that he had filed his objection in June 2013. However in response to this advice the applicant then went to seek out counsel to deal with his WSIA matter. It was shortly after seeking legal advice in September 2014 that this Application was filed.

15I would also observe that there is no objective evidence of any significant cognitive impairment beyond the initial few weeks, at most, months after the injury. It was clear from the evidence called at the hearing that the applicant was on the mend and trying to get on with his life by late 2013. Although some symptoms persisted and his brother and roommate would say some remain to this day, it is clear from the evidence that by the end of 2013 the applicant was able to carry out all of his activities of daily living and there is really no evidence of any significant level of cognitive impairment at all and no objective medical evidence to support the vague and general complaints of fatigue and poor concentration which persisted for a period of time. I note as well that the fact that the symptoms were lessening after the spring of 2013 is reflected in the various medical records tendered at the hearing which make no reference to any subsisting symptoms after March 2013. Despite detailed histories in two instances, beyond the mere mention of a prior concussion, there is no reference in this material to any symptoms flowing from the concussion after Spring 2013.

16Having determined that there is no good faith explanation for the delay, there is no need to consider whether there was any substantial prejudice to any party as a result.

17For all of these reasons the Application is dismissed.