Michano v. FJ Davey Home, 2015 HRTO 488

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorna Michano

Applicant

-and-

FJ Davey Home and Linda Kauppi

Respondents

DECISION

Adjudicator: Alison Renton

Date: April 17, 2015

Citation: 2015 HRTO 488

Indexed as: Michano v. FJ Davey Home

1This Application was filed on December 4, 2014, and alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The personal respondent appears to work in the corporate respondent’s human resources department. On her Application, the applicant identified the last incident upon which she was relying as being November 1, 2013.

2The Tribunal sent the applicant correspondence indicating that her Application was incomplete. In addition to some other required information, the Tribunal requested that she provide an explanation about why she was filing her application more than one year from the last event. The applicant filed further information to complete her Application on January 28, 2015 (“the January information”).

3The Tribunal sent the applicant a letter dated February 3, 2015 advising that her Application may be outside the Tribunal’s jurisdiction because it appeared to be filed more than a year after the last incident of discrimination and without citing any facts that would constitute “good faith” within the meaning of section 34(2) of the Code. The Tribunal directed the applicant to file submissions addressing the potential delay of her Application. The applicant subsequently filed submissions dated March 27, 2015 (“her March submissions”).

4The Application has not been sent to the respondents for Response. The allegations raised in the Application are, at this point, allegations, and there has been no ruling by the Tribunal about whether or not the allegations have merit.

5This Decision is based upon the Application as well as the applicant’s January information and March submissions.

background

6The applicant worked as a personal support worker (“PSW”) for the corporate respondent for approximately three years until she resigned in September 2007 due to her husband receiving employment in another location. She loved her job and deciding to resign was a difficult one for her. When she tendered her resignation, the applicant claims that the corporate respondent’s director of nursing told her that if she ever wanted to come back, her job would always be there for her.

7In December 2010, the applicant moved back into the community, but she did not hear from the corporate respondent’s human resources department about a position. In the meantime, she attempted to find employment as a PSW with other employers, but was unsuccessful. She returned to school in another field, graduated in 2011, had a placement with the corporate respondent in her new field, but did not receive a position from that placement. She looked for employment in her new field, received an interview with an individual who, for the purposes of this Decision will be identified as “AB”, but did not receive a position. She was later told by another person she knows, who will be identified as “XY”, that AB told XY that the personal respondent gave the applicant a bad reference.

8The applicant decided to speak with the personal respondent and “confront” the personal respondent with allegations that she was giving bad references to the applicant’s prospective employers. On her Application, the applicant identified November 1, 2013 as being the date that she had this conversation with the personal respondent, but in her January information and in her March submissions, she identified it as in June 2013.

9During their conversation, the personal respondent denied giving the applicant a bad reference. However, the applicant alleges that the personal respondent told her that she would never get her position back with the corporate respondent based upon injuries the applicant suffered in the workplace while working for the corporate respondent and from which she had fully recovered. The applicant asserts that the personal respondent discriminated against her because of perceived disability.

10The applicant alleges that the personal respondent has given her bad references and “black listed” her within her community, which have prevented her from obtaining work in either as a PSW or in her new field.

11The applicant later contacted the CEO of the corporate respondent after her conversation with the personal respondent to advise him of her allegations about the personal respondent. The CEO said that he would call back the applicant, but he never did. In her January information, she identified this contact as being “about 6 months ago”, but does not identify the date in her March 2015 submissions.

12The personal respondent’s actions have caused the applicant considerable stress and embarrassment, she alleges, as she cannot find work in her community as a PSW.

law and analysis

13Sections 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 subsection 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.

14Section 34(1) is a limitation period established under the Code. The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

15Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121; and Furtney v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 1343.

16Having reviewed the Application, including the January information and the March 2015 submissions, I find that the applicant has not provided a good faith explanation for the delay in filing her Application.

17Assuming the applicant’s allegations fall under the Code, they relate to the bad references the applicant alleges that the personal respondent has been giving about her and the conversation they had when the personal respondent confirmed that the corporate respondent would not hire her again. The conversation is identified on the Application as being November 1, 2013, and in the January information and March submissions as being in June 2013. Either date results in the Application being late as it was filed on December 3, 2014. If the conversation was held in June 2013, the applicant had until June 2014 to file her Application. If the conversation was held on November 1, 2013, then the applicant had until November 1, 2014 to file her Application. Instead, the Application was filed on December 4, 2014, which is approximately 6 months after the June 2014 deadline, or more than a month after the November 2014 deadline.

18On the Application, and in response to question 7d, “If you are applying more than one year for the last event, please explain why”, the applicant wrote that the November 1, 2013 date is when she had the conversation with the personal respondent. She did not provide any further reason about why she was filing after one year of the last event. In the January information and again in her March submissions, she identified the conversation date as being in June 2013 and set out, again, her allegations against the personal respondent as well as reasons why she wanted to pursue her Application against the personal respondent. However, her January information and March submissions do not specifically address why she waited more than a year to file her Application and are not responsive to the Tribunal’s request that she provide a good faith reason for her delay in filing her Application. The applicant appears to suggest that she waited to file her Application because she wanted to “get on with her life” and “not focus on being denied employment at the Davey Home”. She asserts that she has not committed a crime, she loves working in the PSW field and believes it is her calling, and does not deserve the treatment that she received from the respondents.

19I appreciate that the applicant may have wanted to get on with her life and not focus on the treatment she alleges she received from the personal respondent, however, this is not a good faith explanation for the delay given the limitation period set out in section 34 above. The Tribunal has recognized that the applicant must demonstrate some good faith, not just the absence of bad faith, for the limitation period in section 34(1) to have meaning. See Miller, above, at para. 24.

20While the allegation about the CEO may be timely, I find that this amounted to the applicant pursuing her rights. The Tribunal has held that pursuing one’s rights without filing an Application does not, without more, justify a waiver of the one year limitation period under section 34(2). See Gagne v. Maximum Mining, 2010 HRTO 689 at para. 12. As the applicant has not established a good faith explanation for the delay, I need not determine whether or not the respondents suffered any prejudice by the delay. See Colhoun v. Hydro One Networks Inc., 2014 ONSC 163 (Div. Ct.) at para. 12.

21Accordingly, the Application is outside the Tribunal’s jurisdiction as it was filed outside the one-year limitation period in section 34(1) of the Code and the applicant has not provided a good faith explanation for the delay.

22The Application is dismissed.