Saxon v. Amherstburg Police Services Board, 2015 HRTO 318

Human Rights Tribunal of Ontario

B E T W E E N:

James Saxon

Applicant

-and-

Amherstburg Police Services Board and Amherstburg Police Association

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: March 13, 2015

Citation: 2015 HRTO 318

Indexed as: Saxon v. Amherstburg Police Service Board

APPEARANCES

James Saxon, Applicant

Linda Saxon, Representative

Amherstburg Police Services Board, Respondent

Edward Posliff, Counsel

Amherstburg Police Association, Respondent

Jeffrey Hewitt, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). More specifically, the applicant alleges a provision in the collective agreement between the Amherstburg Police Services Board (the “Board”) and the Amherstburg Police Association (the “Association”) is discriminatory because it terminates short and long-term disability benefits at the age of 60.

The Facts

2The applicant was a member of the Amherstburg Police Service. He retired on December 31, 2014. At the time of his retirement, he held the rank of sergeant.

3On March 5, 2012, the applicant was advised by the Chief of Police that he had no disability and sick benefits after he reached the age of 60. The applicant had turned 60 five weeks before on January 26, 2012.

4The termination of benefits at the age of 60 is set out in Article 15.02 of the collective agreement between the Board and the Association, for the period January 1, 2011 and December 31, 2014. It states:

Article 15 Sick Leave and Disability Benefits

15.01 Members shall be entitled to leave from employment while disabled from performing the duties of their employment because of personal illness or accident subject to the limitations of this article and any modified or accommodated work that may be offered by the board

15.02 ….. Benefits shall continue until the termination of disability, rehabilitation as provided by the policy, death of the recipient or the 60^th birthday of the member, whichever shall first occur.

5The Association filed a grievance in relation to Article 15.02 and attended a Conciliation hearing on December 5, 2012. The grievance did not resolve at Conciliation.

6By letter dated February 11, 2013, the Association advised the applicant that it was of the opinion that taking the matter to arbitration would be unsuccessful. The Association advised the applicant further that the appropriate recourse was through human rights. The Association told the applicant that if he wished to proceed with this avenue and required the assistance of the Association, he should advise the Association at his earliest convenience so that the matter could be brought forward to the membership for its attention and approval.

7The applicant filed his Application with the Tribunal, against both the Association and the Board, on January 23, 2014.

8The issue before me is whether that Application is out of time.

analysis

The Law

9The Code requires that applications must be filed within one year after the incident to which the Application relates. The time period may be extended by the Tribunal if the delay in filing the Application was incurred in good faith. The relevant statutory provisions are set out below.

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.

10The limitation period commences from the date of the incident to which the application relates. In this case, the incident arose when the applicant was no longer eligible for benefits on his 60^th birthday on January 26, 2012. At the latest, the incident arose when the applicant was informed that he was not entitled to benefits on March 5, 2012. Under section 34(1) of the Code, the Application should have been filed by March 5, 2013. The Application was filed on January 23, 2014, approximately 10.5 months beyond the one-year limitation period.

11The Tribunal may accept an untimely Application if the delay was incurred in good faith.

12The applicant testified about the reasons for his delay in filing the Application. During his evidence, the applicant stated that he delayed filing because he believed the time period started after the grievance process proved unsuccessful. The applicant testified that in his view, the time period started on February 11, 2013 when he was notified by the Association that it would not take the grievance to arbitration. As a result, the applicant stated the Application filed on January 23, 2014 was timely. Alternatively, the applicant asserted the delay in filing the Application was incurred in good faith because of his belief as to when the limitation period commenced.

13The Tribunal’s jurisprudence does not support the applicant’s view as to what constitutes good faith under section 34(2). The Tribunal has held on a number of occasions that waiting for another proceeding to conclude before filing an Application will generally not constitute a good faith reason for delay. In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal held as follow at para. 23:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other proceedings to conclude before pursuing ones rights under the Code will generally not constitute a valid explanation for delay in filing an application.

14Limitation periods would have little meaning if parties could delay their commencement until after the conclusion of other legal proceedings. In the human rights context, this would mean that applications could be filed with the Tribunal potentially years after an incident of alleged discrimination. Similarly, the meaning of good faith would be diminished if it was interpreted to include the pursuit of other legal proceedings.

15The applicant and his spouse have filed numerous applications before the Tribunal. While the nature of their prior applications is not at all relevant to the issue of delay, this history demonstrates the applicant has some familiarity with the Tribunal’s processes and likely could have made inquiries concerning the time period in which an application must be filed.

16On March 12, 2012, the applicant was notified that his disability and sick benefits terminated at the age of 60. On February 11, 2013, the applicant was advised to pursue his complaint through human rights. Had the applicant acted immediately on this advice, this Application would have been timely. The applicant did not act. Instead, he waited an additional eleven months to file the Application.

17In my view, the applicant has failed to establish good faith for his delay in filing the Application. It is therefore not necessary for me to address the question of whether the respondents are prejudiced by the delay.

18In light of these findings, I have no jurisdiction over the Application. It is for this reason, that I am unable to hear any evidence concerning the merits of the Application.

19The Application is dismissed.