Leve v. Grant Thornton LLP, 2015 HRTO 536

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Leve Applicant

-and-

Grant Thornton LLP Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: April 27, 2015 Citation: 2015 HRTO 536 Indexed as: Leve v. Grant Thornton LLP

WRITTEN SUBMISSIONS

Brian Leve, Applicant Daniel Lublin, Counsel

Grant Thornton LLP, Respondent Allyson Fischer, Counsel

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on July 28, 2014. The applicant is a lawyer and chartered accountant by training. In his Application, he alleged that the respondent discriminated against him because of age when he was required to retire pursuant to the respondent’s mandatory retirement policy.

2This Interim Decision addresses the respondent’s request that the Tribunal dismiss the Application as untimely.

3For the reasons set out below, the respondent’s request is denied.

Relevant Factual background

4There appears to be no dispute between the parties regarding the following facts:

a. The applicant was employed by the respondent from April 2005 until his retirement December 31, 2013.

b. During his employment with the respondent, the applicant signed various partnership agreements, each of which contained a mandatory retirement clause that required retirement at age 63.

c. The applicant took certain steps to prepare for his retirement in advance of his retirement date. He also made statements which implied that he acknowledged that he would be required to retire in December 2013.

d. The applicant appears to have signed a retirement letter on November 14, 2013 which outlined various financial and other arrangements related to his mandatory retirement.

e. The applicant ceased work in accordance with the retirement letter on December 31, 2013.

f. He filed his Application on July 28, 2014.

parties’ submissions

5The respondent argued that the applicant filed his Application more than 8 years outside the time limit set out in s. 34 of the Code. It argued that the time limit began to run on the date when the applicant first became aware of, and agreed to, the mandatory retirement provisions in the first partnership agreement he signed in 2005. In the alternative, the respondent submitted that the Application was filed one year and two months outside the time limit. It argued that the alternative date from which the time limit should be calculated was the date on which the applicant allegedly began to take active steps to prepare for his retirement.

6The applicant submitted that the one year time period should be calculated from the effective date of the applicant’s retirement – December 31, 2013 -- or, at the earliest, from the date that the applicant signed the retirement agreement in November 2013. In either case, the Application would be timely as it was filed within one year of either of these two dates.

Section 34 of the CoDE

7Section 34(1) of the Code provides as follows:

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.

8Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent.

9In this case, the issues that must be addressed are the following:

a. What is the incident to which the Application relates (s. 34(1)(a)) or, alternatively, the last incident in a series of incidents to which the Application relates (s. 34(1)(b))?;

b. Was the Application filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of incidents?; and

c. If not, was the delay incurred in good faith? If so, would substantial prejudice result to the respondent from the applicant’s delay?

10The key dispute between the parties relates to the identification of the incident that triggers the one year time limit contained in s. 34 of the Code.

What is the Incident of Discrimination that triggers the time limit?

11For the reasons that follow, the incident that triggers the one year time limit is the applicant’s forced retirement. The forced retirement is the alleged discrimination in this case. This allegedly discriminatory incident occurred on the effective date of the applicant’s retirement or, at the earliest, when he signed the retirement letter. In either case, the Application is timely.

12I do not agree with the respondent’s submission that the time limit for this Application began to run when the applicant signed his first partnership agreement when he became employed with the respondent. By signing the agreement, the applicant became aware that he might become subject to an allegedly discriminatory requirement in the future. I agree with the applicant that requiring applicants to file applications with the Tribunal within one year of the date on which an applicant becomes aware of the future application of an allegedly discriminatory policy would lead to absurd results. It would require applicants to complain of allegedly discriminatory practices that have not yet occurred and, significantly, that may never occur.

13On the facts of this case, following the respondent’s logic, the applicant would have had to file his Application within one year of the date he signed his first partnership agreement upon first becoming employed with the respondent in 2005. This is notwithstanding the fact that the applicant suffered no actual harm at that time and might never suffer any harm as a result of the mandatory retirement provisions. There are many reasons why the mandatory retirement provisions set out in the partnership agreement might never have applied to the applicant. For example, these provisions might have been amended by the date on which the applicant turned 63. Also, the applicant might have ceased to be employed by the respondent before he turned 63. These examples make clear why it would be inappropriate to treat the date on which the applicant became aware of the policy as the date of the incident of alleged discrimination. Applying the respondent’s logic would require the applicant to file an Application in relation to a policy that might have been changed before it applied to him. As well, it would expose the respondent to potential liability in situations where an employee signed a partnership agreement with the mandatory retirement provisions and later left the firm before the provisions actually applied to him or her.

14For similar reasons, I do not agree with the respondent’s alternative submission that the relevant date was the date on which the applicant began to take active steps to prepare for his forced retirement. At most, this was an acknowledgement by the applicant that he likely would be subject to an allegedly discriminatory requirement in the future. Again, the applicant had not at that point suffered any harm and such harm might never occur.

15For the reasons set out above, I find that the relevant incident that gave rise to the Application was the date on which the policy was actually applied to the applicant. Whether this was the date on which he signed the retirement agreement or his effective date of retirement, the Application is timely.

16I find support for my conclusion in the previous Tribunal cases cited by the applicant: Boyer v. Sears Canada, 2009 HRTO 1084 (“Boyer”) O’Flanagan v. Ontario (Education), 2013 HRTO 121 and Dahir v. Corvin Building Maintenance Ltd., 2014 HRTO 1149. I find Boyer particularly analogous to the facts before me. The issue in Boyer was whether the incident that triggered the time limit in s. 34 was the date an employer announced allegedly discriminatory changes to a pension plan or the date the changes came into effect. The Tribunal concluded that the one year time limit was triggered when the amended plan began applying to the applicant not when the respondent gave notice that it would amend the pension plan.

17I also find that the following cases cited by the respondent involve circumstances that differ significantly from ones in this case: Degen v. Toronto (City), 2011 HRTO 319; Dion v. Mohawk College, 2012 HRTO 1681; and Lechet v. Casey House, 2011 HRTO 620. Although these cases involved applicants who retired or resigned, the facts in these cases are otherwise distinguishable from the facts in this case. These cases involved applicants who alleged that their employers discriminated against them in various ways which then led to their decision to retire or resign. In each of these cases, the Tribunal held that the date on which the applicants chose to retire or resign was not the last in a series of incidents of alleged discrimination. In two of the cases, the Tribunal found that, even if the applicants’ decisions to retire were considered to be incidents of discrimination, they had made these decisions more than one year before the applications were filed. The facts of this case are distinguishable in that the applicant in this case did not decide to retire as a consequence of other allegedly discriminatory acts carried out by the respondents. The case deals squarely with the application of an allegedly discriminatory policy to the applicant which required him to retire by a certain age. For this reason, the analysis in cases such as Boyer is applicable.

18For all of the above reasons, I find that the relevant incident of discrimination for the purposes of s. 34 of the Code occurred less than one year before the Application was filed. Therefore, the Application is timely and I do not need to consider the factors set out in s. 34(2) of the Code.

order and next steps

19The respondent’s request to dismiss the Application as untimely is denied.

20Since both parties have agreed to mediation, the next step in this case will be for the Tribunal’s Registrar to schedule a half-day mediation.