Carter v. Workplace Safety and Insurance Board, 2015 HRTO 1608

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Carter

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

-and-

Canadian Union of Public Employees and its Local 1750

Intervenor

DECISION

Adjudicator: David Muir

Date: November 27, 2015

Citation: 2015 HRTO 1608

Indexed as: Carter v. Workplace Safety and Insurance Board

APPEARANCES

Susan Carter, Applicant

Self-represented

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

Canadian Union of Public Employees and its Local Union 1750, Intervenor

Anne Gregory, Counsel

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

2In a Case Assessment Direction issued on May 11, 2015, the Tribunal directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. it appears that some or all of the allegations may be untimely;

b. another proceeding has appropriately dealt with the substance of the Application; and/or

c. the applicant has signed a full and final release with respect to some of the same subject matter of the Application, and that to proceed with hearing the Application would amount to an abuse of the Human Rights Tribunal of Ontario's process.

3Subsequent to this determination by the Tribunal, the applicant filed a Request for Order During Proceeding ("Request") to add the intervenor to the Application as a respondent. The Tribunal, in a CAD issued on June 29, 2015, directed that this issue could be addressed at the preliminary hearing.

4The preliminary hearing was held on November 17, 2015 by conference call. All parties participated. For the reasons that follow the Application is dismissed because it is untimely. The applicant's Request to add the intervenor as a respondent is denied because there are no allegations of discrimination against the intervenor made by the applicant and in any case all of her complaints about the intervenor's conduct are untimely. With respect to the delay issues I am not satisfied that the applicant has met the burden of establishing a good faith explanation for the delay.

Background

5The applicant was assaulted by several individuals in 2005 and suffered significant injuries as a result. She continues to experience the consequences of the assault to this day. In addition to the physical injuries sustained at the time the applicant has experienced significant mental health challenges flowing directly from the assault. These issues have had a significant impact on her ability to perform many of the functions of everyday living and have interrupted her career with the respondent for lengthy periods of time. The applicant is now back at work on a third and hopefully successful return to work.

6The allegations in the Application as filed relate to an unsuccessful return to work from January to March 2011, the treatment of a period of long term disability (LTD) for which benefits were ultimately paid and a subsequent grievance arbitration with respect to the treatment of the period of LTD under the collective agreement. The grievance arbitration was settled in part in June 2011 but the settlement could not be fully implemented for reasons that remain unclear. The remainder of the grievance was not entirely successful for the applicant and this remains a matter of some concern for her.

7With respect to the return to work in 2011, the applicant alleges that she was sent home in late March 2011 without justification and that this constituted a refusal to accommodate her to the point of undue hardship under the Code. This appears to be the last allegations of discrimination by the employer.

8As regards the settlement, this related in part to an attempt of the workplace parties to facilitate the applicant's purchase of pensionable service for a period while she was in receipt of long term disability payments. The applicant now asserts that she did not understand the settlement; it was not explained to her, and this was discriminatory. As regards the arbitration award with which she takes issue, the applicant believes that the decision on the union's part to not challenge the decision was discriminatory.

Are Allegations Untimely (delay)?

9Section 34 (1) and (2) of the Code read as follows:

(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.

10The Application was filed on January 6, 2015, and as framed relates to events culminating in the applicant allegedly being sent home after an attempted return to work from January to March 2011. The Application was filed well beyond the one-year period set out in the Code and is out of time unless the Tribunal is satisfied that the applicant has established a good faith explanation for the delay. The applicant relies on her alleged disabilities which appear to be longstanding. In particular the applicant relies on a letter from a treating psychologist dated September 23, 2014. The material text of which is set out here:

Ms Carter who has been a patient of mine for several years has asked that I comment on her delay in seeking to file a human rights complaint subsequent to the termination of her return to work attempt in January/March 2011.

In my view her termination on the grounds of their inability to provide a safe work environment when called upon to make rather simple accommodations made the human rights issue quite opaque. Her demoralization in the face of the termination set her back considerably and it was some time before she could re-establish a sense of balance regarding her capacity to work.

In seeking to regain her balance she accepted a course of psychotropic medication which appears to have clouded the picture rather than assisted. In recent months she has ceased taking the medication and through therapy and consultation with others has come to understand her situation as arising from discrimination and a failure to accommodate. She is feeling much stronger and clearer about her situation now and plans on attempting a return to work as well as seeking to launch a human rights complaint.

11In submissions made in relation to this preliminary hearing, the applicant asserted that she stopped taking Ativan in January 2014 and antidepressants in August 2013. The applicant also asserted that she consulted a lawyer in March 2014. These dates were confirmed at the preliminary hearing. As previously indicated the Application was filed on January 6, 2015.

12I am not satisfied that the applicant has met her burden of establishing a good faith explanation for what is a very extensive delay. The Tribunal has held that where an applicant is asserting a medical basis for a lengthy delay they must present evidence which would establish that they were practically prevented from doing so in a timely way. In 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, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

See also, James v. York University, 2015 ONSC 2234 at paras. 45-50 (Div. Ct.).

13In this case the evidence falls quite short of establishing that the applicant was ever prevented from filling this Application before she did. The letter provided by her psychologist does not assert that the applicant was unable to file the Application during the almost four years subsequent to the material incidents. I would also observe that her claim of incapacity is belied by her active participation, including giving evidence, in a grievance arbitration in the intervening period between the events complained of and filing the Application.

14Even accepting without deciding that she could not do so before January 2014 when the effects of her medications were removed from the situation there is no real explanation for her not filing this Application before January 6, 2015. In my view when an Application is already out of time and well beyond the one-year limitation period contained in the Code, it is incumbent that an applicant act with all due diligence and minimize the delay – there is no evidence that the applicant did so in this case. As the respondents argued at the preliminary hearing, the applicant did not have a year from January 2014, or February 2014 when her neighbour who is a lawyer gave her some advice, but is required to act with all due diligence to file the Application as soon as possible. It is not clear that the applicant did so in this case.

15I accept that the applicant finds revisiting the past stressful and that she put off dealing with the Application for this reason. It is also understandable that the applicant focussed on getting better and getting back to work, a goal she has in fact achieved. It is entirely appropriate that she focus on the future and not the past and has done so with some success. It also may be that the applicant had other priorities in her life at the time, such as, as she advised at the hearing, visiting her daughter in California who gave birth to the applicant's first grandchild in this latter period. However, what is also clear from the submissions of the applicant and the materials filed is that the applicant was alive to the fact that she could file a human rights application in 2011; that she was advised to do so in February 2014; that she contacted the Human Rights Legal Support Centre in March 2014, which sent her an application package at that time; and that she had a conference call with the HRLSC on August 4, 2014, and was advised to file the Application as soon as she could. In the end the Application was filed some five months later. In somewhat similar circumstances, the Tribunal, while accepting that an applicant had been unable to file their Application for some period, found that there was no reasonable explanation for a further delay of six months. See Solcan v. Kitchener (City), 2011 HRTO 2205.

16In conclusion I am not satisfied that the applicant has established a good faith explanation for the delay in filing this Application and the Application is dismissed on this basis.

17Having dismissed the Application on this basis there is no need to consider the other issues raised in the May 11, 2015 Case Assessment Direction.

Should the Intervenor Union be added as a Respondent?

18The applicant seeks to add the intervenor as a respondent. The allegations as indicated in the Case Assessment Direction of June 29, 2015 appear to be that the Union failed to properly represent her or pursue a grievance. In Traversy v. Mississauga Firefighters' Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

The allegations relate primarily to the conduct of the intervenor after the failed return to work in March 2011. The final allegations appears to be that the intervenor declined to take any steps to appeal or seek judicial review of a decision of the arbitrator released in February 2013 with which the applicant disagreed.

19As was pointed out in the June 29, 2015 CAD, assuming that the Code also applies to this aspect of a union's relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors. See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-18.

20The allegations of the applicant, if true, fall into the category of the intervenor failing to act when the applicant thought it should, or complaints about bad advice it gave to her, or mere negligence. The applicant's submissions pose more questions than they provide facts which would tend to support the inference that a factor in the decisions made was the fact that the applicant may have been a person with a disability. The applicant repeatedly posits as a question whether the action of the intervenor was mere inadvertence or negligence or, was it discrimination? At various times she states in her submissions that she does not know why the intervenor did some of the things she claims that it did or failed to do. This is not evidence of facts from which an inference of discrimination can be drawn. As such, there is no basis on which the intervenor can properly be added as a responding party to this Application

21I would also observe, as argued by the intervenor, that the allegations are untimely and for the reasons set out above would not add the intervenor as a respondent for that reason as well.

22For all of these reasons the Application is dismissed.