HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Huseyin Eren
Applicant
-and-
General Motors of Canada Limited
Respondent
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Eren v. General Motors of Canada Limited
APPEARANCES
Huseyin Eren, Applicant
Emrah Eren, Representative
General Motors of Canada Limited, Respondent
David Bannon, Counsel
Introduction
1By Application filed on January 29, 2014, the applicant alleged that the respondent discriminated against him on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"). Specifically, the applicant alleged that the respondent discriminated against him by denying him a full pension due to his work-related disability.
2In its Response, the respondent submitted that the Application should be dismissed as untimely as it was not filed within the timeframe set out in s. 34 of the Code. In a Case Assessment Direction ("CAD"), the Tribunal directed that a preliminary hearing be held to address the two following issues: (1) whether the Tribunal should dismiss the Application as untimely and (2) whether the Application should be dismissed on the basis that it stands no reasonable prospect of success. At the preliminary hearing, I heard submissions from the respondent's counsel as well as submissions from the applicant's son who acted as his representative in this proceeding.
3For the reasons set out below, the Application must be dismissed as untimely. Due to my conclusions on this issue, it is not necessary for me to consider the second issue set out in the Tribunal's CAD.
Factual Background
4The following facts are not in dispute:
a. The applicant was employed by the respondent. His last day of work was in 1992 or 1993 after he suffered a workplace injury.
b. In 1994, the applicant signed forms in order to obtain a Total and Permanent Disability ("T&PD") pension from the respondent.
c. Under the terms of the respondent's pension plan, an employee with at least 10 years of service who is totally and permanently disabled or occupationally disabled prior to reaching age 65 is eligible for a T & PD pension.
d. By signing the forms, the applicant retired from employment and began receiving a T&PD pension. The applicant states that he was unaware that by signing the forms he was retiring from employment despite the fact that the forms refer to him as a retiree.
e. The applicant turned 65 in June 2011.
f. When the applicant turned 65, the applicant's WSIB Loss of Earnings benefits ceased. He continued to receive the T&PD pension but was not eligible for a full pension as though he had continued to accrue seniority and pension credits until age 65.
g. Around the time he turned 65, in or around June 2011, the applicant consulted a representative of his union as to why he was not receiving a full pension from the respondent.
h. More than a year later, in September 2012, the applicant consulted legal counsel who wrote to the respondent to inquire into the matter on September 5, 2012.
i. It appears that the respondent's counsel sent a letter to the applicant's counsel on October 16, 2012. In a letter dated January 7, 2013, the applicant's counsel stated that the respondent's counsel advised in the October 16, 2012 letter that the applicant had completed the necessary paperwork to retire effective March 1, 1994. In his January 7, 2013 letter, the applicant's counsel asked the respondent's counsel to provide him with a copy of the paper work signed by the applicant.
j. By letter dated January 29, 2013, the respondent's counsel sent the applicant's counsel the relevant paperwork. In that letter, the respondent's counsel advised the applicant's counsel that it had reviewed the applicant's employment history and that he was not eligible for a full pension because he had retired in 1994.
Timeliness
5Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.
6As noted above, the applicant filed his Application on January 29, 2014.
7The applicant submitted that the Application is timely on the basis that the respondent's letter dated January 29, 2013, exactly one year earlier, was an incident of discrimination. He also submitted that it was only upon receiving the January 29, 2013 letter that he became aware of the Code violation alleged in his Application. I cannot accept either of these submissions.
8First, the respondent's January 29, 2013 letter is not an incident of discrimination within the meaning of s. 34 of the Code. In the January 29, 2013 letter, the respondent's counsel simply attached the documentation requested by the applicant's counsel in a previous letter which supported the respondent's position that the applicant was not eligible for a full pension because he retired in 1994. The letter merely explains why the applicant did not begin receiving a full pension when he turned 65 in 2011. It cannot reasonably be construed as an incident of discrimination that forms part of a series of incidents. The incident of alleged discrimination in this case occurred approximately 20 years before the Application was filed, in 1994, when the applicant was required to retire in order to receive the LT&D pension and/or when he became ineligible to continue accruing seniority and pension credits while receiving the LT&D pension.
9I do not accept the applicant's second submission that the Application should be considered timely because he only discovered the discrimination alleged in his Application when he received the January 29, 2013 letter from the respondent's counsel. Although the applicant did not frame this submission as an alleged good faith reason to explain the delay in this case, I will treat it as such. The Tribunal has in the past addressed issues of discoverability under the good faith branch of the timeliness analysis. See for example Selkirk Estate v. Ontario (Health and Long-Term Care), 2013 HRTO 1980 upheld Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174 (Div. Ct.) ("Selkirk").
10In essence, the applicant submitted that he only discovered that the respondent's actions might be discriminatory when he received the respondent's January 29, 2013 letter. He acknowledged that he was aware he did not begin receiving a full pension when he turned 65 in June 2011. However, he stated that he did not realize until January 2013 that his failure to receive a full pension might be alleged to be discriminatory. He submitted that this lack of knowledge should be accepted as reasonable explanation for the delay in filing his Application.
11I cannot agree. What is relevant is not when the applicant realized that the respondent's actions might be discriminatory, but instead when he was aware of the facts that gave rise to the discrimination alleged in his Application. In my view, the applicant reasonably would have been aware of the facts that gave rise to the discrimination alleged in his Application in or around June 2011 at the latest. Even if I accept his assertion that he was not aware that by applying for a T&PD pension in 1994 he was retiring from employment and would be ineligible for a full pension at age 65, he was aware when he turned 65 that he was not receiving a full pension.
12The applicant's son submitted that, while the applicant knew in around June 2011, that he was not receiving a full pension, he did not know why. He stated that he and his father started trying to find out what the amount of the applicant's pension would be in 2010. According to the applicant's son, they had problems getting in touch with anyone who worked for the respondent who could give them answers. They once again tried to contact the respondent after the applicant turned 65 in June 2011, but again had difficulties reaching anyone who could answer their questions. They ended up consulting a representative of the applicant's union. This representative told the applicant that he should have been accumulating seniority and pension credits while he was on WSIB. What the union representative did not appear to know was that the applicant had retired and was receiving a T&PD pension. The applicant eventually contacted legal counsel over a year later in September 2012 for advice on the issue. Through his legal counsel he learned that he was not eligible for a full pension because he retired when he signed the forms to receive the LT&D pension starting in 1994.
13Based on the above, I find that the applicant was aware of the relevant facts that gave rise to the Code violation alleged in his Application in or around the time he turned 65 in June 2011, at the latest. At this time, he knew he was not receiving a full pension and he knew that he had not accrued seniority and pension credits after he went off work due to his work-related injury. Even if I were to accept that it was a relevant fact that the respondent considered the applicant to have retired, the applicant would have known this from the respondent's October 2012 letter referred to in its January 2013 letter. Therefore, I find that the applicant was aware of the facts that gave rise to his discrimination claim more than one year before he filed his Application. In my view, he was aware of the relevant facts in or around June 2011, approximately two and a half years before he filed his Application. On the absolutely most generous view of the situation, he would have been aware of all relevant facts by October 2012 when the respondent confirmed that by signing the forms he signed in 1994 he had retired from employment. On this very generous view of the facts, he would have been aware of the facts giving rise to his claim a full 15 months before he filed his Application. The real issue appears to be that the applicant did not appear to know that these facts could give rise to a legal claim.
14The Tribunal has repeatedly held that a lack of knowledge of the law does not constitute good faith within the meaning of s. 34 (2). See, for example, Selkirk, above and Lutz v. Toronto (City), 2009 HRTO 1137. These cases stand for the proposition that it is not enough to show that applicants were unaware of their rights under the Code, they must also establish that they had no reason to make enquiries about those rights. In this case, the applicant had all the information necessary to make enquiries about his legal rights. In fact, he did make inquiries about his rights from his union in or around 2011 and from legal counsel in September 2012. Nevertheless, he did not file his Application until January 2014. In these circumstances, I find that he has failed to provide a good faith explanation for the delay in filing his Application.
15As a final point, the applicant's son submitted at the preliminary hearing that the fact that the WSIB found in his father's favour in 2005 and granted him full Loss of Earnings benefits served to change his father's status. While he claimed that this was relevant to the timeliness issue, I cannot agree. Whether the applicant believed that the WSIB's decision changed his status as a retiree or not, he reasonably would have known at least by the date he turned 65 in June 2011 that this was not the case. He still reasonably would have known as of that date that he was not receiving a full pension from the respondent. As noted above, he failed to file his Application until two and a half years after that date.
16In sum, I find that the Application was filed more than a year after the last incident of alleged discrimination and the applicant has failed to satisfy the requirements of good faith set out in s. 34(2) of the Code. It is, therefore, not necessary for me to consider whether substantial prejudice would result from the delay.
order
17For the above reasons, the Application is dismissed.
Dated at Toronto, this 11th day of March, 2015.
Jo-Anne Pickel
Vice-chair