Pauhl v. Hamilton Health Sciences Corporation, 2015 HRTO 534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilbert Pauhl Applicant

-and-

Hamilton Health Sciences Corporation, Canadian Union of Public Employees and its Local 7800 Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: April 24, 2015 Citation: 2015 HRTO 534 Indexed as: Pauhl v. Hamilton Health Sciences Corporation

APPEARANCES

Wilbert Pauhl, Applicant Self-represented

Hamilton Health Sciences Corporation, Respondent Jane M. Gooding, Counsel

Canadian Union of Public Employees and its Local 7800, Respondents Devon M. Paul, Counsel

Introduction

1This Application 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”).

2On August 7, 2014, the Tribunal issued a Case Assessment Direction, which directed that a preliminary in person hearing be held to determine whether the Application should be dismissed on the basis of delay and/or pursuant to s. 45.1 of the Code and/or as an abuse of process.

3A preliminary hearing was held on February 18, 2015. The respondents supported the dismissal of the Application. At the hearing the applicant and his lawyer testified. The only issue addressed on this date was the issue of delay.

Background

4The applicant started his employment with the Hamilton Health Sciences Corporation (the “Hospital”) on October 23, 2006 and was terminated on January 12, 2012.

5Shortly after his termination, the respondent union (the “Union”) filed a grievance on the applicant’s behalf claiming the respondent’s termination was unjust and that it violated the collective agreement and the Code.

6On April 3, 2012 a mediation was conducted in relation to the grievance and at the conclusion of the mediation the parties entered into Minutes of Settlement wherein the Hospital agreed to pay the applicant monetary damages and the applicant agreed to a full and final release, including any “applications filed to the Human Rights Tribunal of Ontario”. The cheque for the monetary damages was cashed by the applicant.

7According to the evidence, in May 2012, the applicant approached his lawyer, to obtain legal advice about his human rights issues. In their testimony, the applicant and his lawyer made it clear that the applicant wanted to pursue a claim at the HRTO against the Hospital and the Union. Indeed, on May 16, 2012 the applicant emailed his lawyer stating, “I think that I want to pursue claims against the Union and the HHSC through the Human Rights Tribunal”. In response, his lawyer emailed the applicant: “I want to review your OHRC application before you submit it”.

8According to the applicant, at this time he downloaded an application from the HRTO’s website and began completing it.

9On August 1, 2012 the applicant filed a duty of fair representation complaint with the Ontario Labour Relations Board (“OLRB”) seeking to have the settlement set aside and his grievance referred to arbitration where the applicant’s termination would be addressed.

10His lawyer testified that in his view the best course of action was to file the duty of fair representation complaint with the OLRB and only file the human rights application once the OLRB resolved the duty of fair representation complaint. He further testified that he was of the opinion, which he expressed to the applicant, that the arbitrator would deal with any human rights issues thereby eliminating the reason for filing the human rights application. His lawyer testified:

My strategy was that we might be able to get two birds with one stone by proceeding before the OLRB. The thinking was that we could probably get a settlement that would allow us to go to arbitration and that all of the issues could be dealt with in one forum. That is the advice I gave him. That is why no human rights application was filed at that time.

11His lawyer also testified that he advised the applicant that it was his view that his chances before the OLRB were very good. He indicated as well that it was more likely than not that he would have advised the applicant of the limitation period for filing the human rights application.

12Ultimately the duty of fair representation complaint was dismissed and the applicant’s October 31, 2013 request for reconsideration of that decision was also dismissed.

13The Application with the HRTO was filed on January 31, 2014. The “last alleged incident of discrimination” as set out in the Application, that being April 3, 2012, occurred almost 18 months prior to the Application being filed.

analysis

14Pursuant to s. 34 of the Code, where an application is filed more than a year after the incident or the last incident in a series of incidents to which the application relates, the Tribunal has no jurisdiction to deal with the application unless it is satisfied the application was incurred in good faith and no substantial prejudice would result to any person affected by the delay. Section 34 reads:

34(1) If a person believes that any of his or her rights under Part 1 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 in 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.

15Subject to s. 34(2) of the Code, the timeframe set out in section 34(1) is mandatory. This timeline is consistent with the policy objective underlying the Code that human rights claims be dealt with expeditiously. Accordingly, an individual must act with all due diligence and file his or her application within one year of the incident of discrimination. (See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.)

16The applicant does not dispute that his Application was filed more than one year after the event complained of. He claims, however, that the delay in filing his Application was incurred in good faith and that, accordingly, his Application is within the Tribunal’s jurisdiction.

17In establishing good faith, the Tribunal has placed a fairly high onus on applicants to provide a good faith explanation (See, for example, Murray v. Craigwood Youth Services Inc., 2011 HRTO 677). The applicant must show something more than the absence of bad faith; he must show that he acted with due diligence.

18The applicant provided the following explanations for the delay in filing his Application: he was ignorant of the law in that he did not know there was a one year limitation period for filing his Application; he was pursing an application at the OLRB; and, he was acting under the direction of his lawyer.

Ignorance of the Law

19The applicant testified that he did not know about the one-year time-limit to file his Application. Had he known, he claims that he would have filed his Application in a timely manner.

20The Tribunal has consistently held that ignorance of one’s rights does not, except in the most exceptional cases, constitute a reasonable or good faith explanation for the purposes of s. 34(2) of the Code. An applicant must establish not only that he was ignorant of his rights, but also that he had no reason to make inquiries about those rights. (See, for example, Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174 (Div. Ct.) and Lutz v. Toronto (City), 2009 HRTO 1137).

21That being said, I am of the view that the applicant was well aware of the time line for filing his Application. The uncontested testimony of his lawyer was that he, “more likely than not”, told the applicant that there was a one year limitation period to file his human rights Application. In my view, it is not unreasonable that his lawyer would have brought this to the attention of the applicant given that the applicant approached his lawyer to specifically assist him with “claims against the Union and HHSC through the Human Rights Tribunal”.

22Moreover, it was the testimony of the applicant that during this same time period he downloaded an application from the HRTO’s website and began completing it. He claimed that he did not read all of the application. In completing the application it is reasonable to assume, however, that the applicant would have read the first page of the application which starts with the heading “How to Apply to the Human Rights Tribunal of Ontario”. On the first page printed in bold is “What is the time for filing an Application?” Immediately below it is clearly stated that “You can file an application up to one year after you experienced discrimination…”. I find it more likely than not that the applicant was aware of the time limit for filing his Application not only by reason of his lawyer’s advice but also by virtue of the application he downloaded from the HRTO’s website.

Application at the OLRB

23The applicant testified that he was of the understanding that he could not file a human rights application until he exhausted his attempt to obtain redress through his duty of fair representation complaint at the OLRB. It was never made clear as to how the applicant came to this understanding.

24The Tribunal has found that the fact that an applicant is pursuing other avenues is not generally a valid or good faith reason for a delay in filing a human rights application and that an applicant can file a timely application under the Code while he pursues his statutory and contractual rights elsewhere.

25An analogous situation to that of the applicant is seen in Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Here the applicant submitted that she could not file her human rights application until she had exhausted her attempts at redress through a duty of fair representation complaint to the OLRB and the arbitration hearing held in regard to her termination grievance. The Tribunal held that the applicant’s delay in filing her human rights application was not incurred in good faith because the applicant could have nonetheless filed her application while other proceedings were ongoing and the Tribunal could have deferred the application to the other proceedings. The Tribunal explained at paragraph 23:

…[T]he 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 legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for the delay in filing an Application.

26In his testimony, his lawyer acknowledged that another claim in another forum is not a bar to filing an application under the Code or that a proceeding in another forum had to be completed before making an application under the Code. He indicated that this would have been reflected in his advice to the applicant. He further testified that he advised the applicant to postpone filing a human rights application on the belief that initiating proceedings at the OLRB could have resolved the human rights issues and would have eliminated the need to file a human rights application.

27The applicant was required to file an application within the timelines under the Code while he pursued a remedy at the OLRB. Nothing prevented the applicant from filing an application within the timeline and nor was he unable to do so. Having a complaint at the OLRB is not a good faith explanation for the late filing of the Application.

Acting under the Direction of his Lawyer

28The applicant submits that his lawyer advised him not to initially file a human rights application. According to the applicant he relied on this advice so that to the extent there was delay in filing his Application, there was a good faith basis for the delay.

29In my view, the evidence does not establish that the applicant was ignorant of the law or that he had to finish his complaint at the OLRB before applying to the Tribunal. Rather, the evidence establishes that the applicant followed his lawyer’s strategic advice that he could best achieve his objectives through the OLRB process. As his lawyer testified they could “get two birds with one stone” at the OLRB. Indeed, his lawyer testified that this strategic advice was why no Tribunal application was filed.

30In Hunter v. Vermeer, 2010 HRTO 669, the applicant believed that her employer discriminated against her by sending her a letter with various discriminatory remarks. The applicant consulted a lawyer who had little human rights expertise. Based on her lawyer’s advice, she decided not to file a human rights application but to keep the letter for use at a later date if required. The Tribunal found that the applicant’s reliance on counsel’s advice did not provide a good faith basis for the delay. The Tribunal stated:

[49] There is nothing wrong with adopting a legal strategy which involves a party not relying on a particular piece of evidence until sometime in the future. However, the adoption of such a strategy does not excuse that same party from complying with the applicable law relating to the commencement of legal proceedings. […]

[50] […] She secured legal advice with respect to that issue and decided to not pursue the discrimination issue at that point in time. She was prepared to “sit on her rights”. The applicant must bear the risk of engaging in that strategy and if she failed to make reasonable inquiries about that strategy and any attendant risks or time limits, she cannot say that her delay was in good faith.

31In my view, the applicant made an informed choice based on his discussions with his lawyer. He felt that he would be successful at the OLRB. He acknowledged, in his testimony, that if such was the case, no human rights application would be necessary. He decided on the basis of his lawyer’s litigation strategy to prefer pursing his rights before the OLRB to pursuing them before the Tribunal. The applicant has not established that he was unable to pursue his human rights claim at the Tribunal, but rather that he chose to pursue them in another forum.

32The applicant relies on three decisions of the Tribunal: Hickmott v. YMCA of Western Ontario, 2014 HRTO 742; Patterson v. Mississauga (City), 2012 HRTO 598; and, Caron v. Lakeside Plastics Limited, 2014 HRTO 958. In each of these cases the Tribunal determined that the delay in filing the respective applications was in good faith because a mistake was made in the legal advice relating to a timeline of filing or in the filing of the application itself. In the present case, there was no mistake with respect to the time-line for filing an application with the Tribunal. The applicant was aware of the limitation period and rather than file an application with the Tribunal, chose to rely on his lawyer’s litigation strategy to pursue his claim elsewhere. He was unsuccessful before the OLRB and now seeks a remedy before the Tribunal. Had he succeeded before the OLRB, no human rights application would have been filed with the Tribunal. In my view, this cannot constitute good faith within the meaning of s. 34(2) of the Code.

Conclusion

33For the above reasons, the Application is dismissed because it was filed outside the limitation period provided for in the Code and the applicant has not established a good faith reason for the delay.

34In light of my finding on delay, I will not address or require additional submissions from the parties on the issues of s. 45.1 of the Code or abuse of process.