James Saxon v. Amherstburg Police Services Board and Amherstburg Police Association, 2015 HRTO 624

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

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott Date: May 13, 2015 Citation: 2015 HRTO 624 Indexed as: Saxon v. Amherstburg Police Services Board

WRITTEN SUBMISSIONS

James Saxon, Applicant

James Saxon, Self-represented

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 that a provision in the collective agreement between the Amherstburg Police Services Board (the “Board”) and the Amherstburg Police Association (the “Association”) terminating short and long-term disability benefits at the age of 60 is discriminatory.

2The Application proceeded to a hearing on February 19, 2015. At the commencement of the hearing, I raised the question as to whether the Tribunal had jurisdiction because the Application was filed outside of the one-year time period set out in section 34(1) of the Code. I heard the applicant’s evidence as to why he filed the Application late and then proceeded to hear the parties’ submissions on whether the Tribunal had jurisdiction to hear the matter because of the applicant’s delay.

3At the conclusion of the parties’ submissions, I held the Application was filed outside of the one-year limitation period and the applicant had failed to establish a good faith reason for his delay. I ruled I did not have jurisdiction and as a result, could not proceed to hear evidence on the merits of the Application. I provided written reasons for this decision on March 13, 2015. See Saxon v. Amherstburg Police Services Board, 2015 HRTO 318 (the “Decision”).

4On April 10, 2015, the applicant filed a Request for Reconsideration where he submitted: (a) there are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier; (b) the applicant did not receive notice of the hearing; (c) the Decision is in conflict with established case law or the proposed Reconsideration involves a matter of public importance; and (d) other factors exist that outweigh the public interest in the finality of Tribunal decisions.

5Attached to the Request for Reconsideration is a statutory declaration provided by the applicant giving further evidence regarding the reasons for his delay in filing the Application.

6The issue of delay was raised by me at the commencement of the hearing. I appreciate that this may have taken the applicant off-guard and that he may have omitted evidence about the reasons for his delay. It is for this reason that I have considered the further evidence provided by him in the statutory declaration. The evidence that I have considered concerns the reasons for the delay in filing the Application. Any evidence concerning the impact of the termination of disability benefits has not been considered because it relates to the merits of the Application, not the issue of delay. That said, I understand from the information contained in the statutory declaration that the termination of disability benefits has had a great impact, and, from the applicant’s perspective, contributed to his decision to retire from the Police Service with significant financial consequences.

Further Evidence on Delay (Statutory Declaration)

7On March 5, 2012, the applicant was advised by the Chief of Police that he no longer had short and long-term disability benefits. Prior to this date, the applicant was not aware that these benefits terminated at the age of 60. The applicant turned 60 on January 26, 2012.

8The Association filed a Rights Dispute between the Association and the Board with respect to the provision in the collective agreement that terminated disability benefits at the age of 60.

9The Rights Dispute proceeded to a Conciliation hearing on December 5, 2012. The issue did not resolve at Conciliation.

10The Association wrote to the applicant on February 11, 2013. The Association advised the applicant that it was of the opinion that taking the matter to arbitration would be unsuccessful and that the appropriate way to resolve it was through human rights. The Association did not advise the applicant that there was an impending time limitation relating to the human rights issue.

11The applicant broke his foot in March 2013. From March 15 to May 21, 2013, the applicant used 216 hours of banked sick time and did not attend work full time. During that period, the applicant worked 18 days despite his serious medical injury and the acute pain that he was experiencing. The applicant worked from May 22 to July 26, 2013 wearing a boot brace. The applicant returned to full-time duties from July 29 to September 22, 2013, but booked off sick on September 23 and 24, 2013. The applicant worked with a second brace from September 25 to November 7, 2013.

12The applicant used more banked sick time in July and August 2014 because of a bad left knee. The applicant was able to stay off work from August 17 to December 31, 2014 by using banked vacation, lieu time, statutory holidays and overtime.

13The applicant retired on December 31, 2014. He retired because he could no longer tolerate working with serious medical injuries and could not afford to go without pay for foreseeable periods when he was unable to work because of these injuries.

14The applicant began preparing his human rights Application in March 2013, but did not foresee the injury that he suffered at that time. This was the same medical injury that prevented him from working from March to November 2013.

15The applicant filed his Application with the Tribunal on January 23, 2014.

test for reconsideration

16Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

17The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

18The Tribunal’s Practice Direction on Reconsideration states Reconsideration is a discretionary remedy: that there is no right to have a decision reconsidered by the Tribunal. It affirms that Reconsideration is not an appeal or an opportunity for a party to change the way he or she presented their case. The Practice Direction gives examples of situations where the Tribunal has refused Requests for Reconsideration, including where a party wishes to repair perceived deficiencies in the presentation of the party’s case by either re-arguing it or raising new arguments in support of it.

decision

19In the Decision, I held the one-year limitation period commenced on the date when the applicant no longer had disability benefits. This occurred on January 26, 2012, when the applicant turned 60. Alternatively, the limitation period commenced on March 5, 2012 when the applicant was informed by the Police Chief that he no longer had disability benefits.

20The applicant submits the limitation period commenced on February 11, 2013 when he was informed by the Association that the termination of disability benefits at 60 was a human rights issue, not a collective bargaining issue. I rejected this argument in the Decision. Section 34(1) of the Code clearly states the limitation period commences within one year after the incident to which the application relates. There was no incident of discrimination that occurred on February 11, 2013.

21The applicant submits in the alternative, that the discrimination occurred from March to November 2013 when he required benefits as a result of a broken foot. I disagree. The discrimination complained about in the Application is the provision in the collective agreement that terminates disability benefits at 60.

22The termination of disability benefits occurred when the applicant turned 60 on January 26, 2012 or when he was advised of the termination in benefits on March 5, 2012. The fact that the applicant had an injury that may have been eligible for disability benefits, had they not been terminated, does not change the date of the incident of discrimination. Put differently, the date of the incident of discrimination would not change if the applicant never required the disability benefits. The alleged discrimination is the termination of disability benefits when the applicant turned 60.

23The applicant suggests the termination of benefits in 2012 and the requirement for the benefits in 2013 is a series of incidents. I disagree. As stated previously, the incident of discrimination occurred when the applicant no longer had disability benefits. The fact that he was later injured and required coverage was not a new incident of discrimination. It was a consequence of the discrimination that occurred when the coverage was terminated when the applicant turned 60. See Garrie v. Janus Joan Inc., 2012 HRTO 1955.

24In the Decision, I held the Application was untimely and that the applicant had failed to provide a good faith explanation for his delay. The applicant has put forward further evidence concerning the issue of good faith in this Reconsideration Request.

25The applicant asserts the Association had undertaken steps challenging the termination of disability benefits at 60 in the collective agreement. He states that as a member of the Association, he did not have the right to file a separate human rights Application while this was ongoing. It was only on being informed by the Association that the termination of disability benefits at 60 was a human rights issue, and not a collective bargaining issue, that he was able to bring this Application.

26The applicant is incorrect in his belief that he was unable to file the Application while the grievance was proceeding. It is common for an application to be filed with the Tribunal about the same matter that is the subject of a grievance, whether that grievance is an individual grievance or a policy grievance. In those situations, the application may be deferred by the Tribunal pending the conclusion of the grievance process. To accept the applicant’s argument would mean applications could not be filed until the conclusion of the grievance process. The Tribunal has consistently held that applicants are required to file their applications in a timely way and that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Khatri v. Kraft Foods Canada, 2014 HRTO 354 at para. 17.

27Further, the applicant, as a member of the Association, has filed an application with the Tribunal before. He is therefore aware that he is entitled to file an application with the Tribunal as a unionized member.

28In any event, the applicant became aware that the Association was not proceeding with the grievance on February 11, 2013, three weeks before the expiry of the limitation period. The applicant could have filed the Application within the limitation period. Instead, he waited an additional eleven months to file the Application.

29The applicant states the Association president did not inform him of the limitation period and led him to believe that the period started when the Association determined it was a human rights issue and not a collective rights issue. There is no solicitor client relationship between the applicant and the Association. The Association did not provide the applicant with legal advice and did not assist the applicant in filing this Application. The Association is, in fact, a named respondent in this Application. The decisions relied upon by the applicant in the Reconsideration Request have no relevance here because they concern the provision of misleading legal advice. See, for example, Patterson v. Mississauga (City), 2012 HRTO 598.

30In the statutory declaration, the applicant states the period March to November 2013 was a difficult period because of his serious medical injury and the requirement that he work with considerable pain. The period relied upon by the applicant is after the expiry of the limitation period on March 5, 2013. It does not provide an explanation as to why the applicant failed to file the Application within the one-year period from March 5, 2012 to March 5, 2013.

31The applicant suggests that there should have been a full hearing where all parties were required to adduce evidence, subject to cross-examination. There was a full hearing on the issue of delay. The applicant was given the opportunity to give evidence as to the reason for his delay in filing the Application and the parties were permitted to provide oral submissions on the question of jurisdiction. The only party that had evidence concerning why the Application was filed late was the applicant.

32The applicant suggests that by me raising the delay issue at the outset of the parties, I had predetermined the matter. That is not correct. The Tribunal does not have jurisdiction over applications filed outside of the limitation period unless there is a good- faith explanation for the delay and no prejudice is caused to the respondent by the delay. I was obligated to raise the issue of jurisdiction with the parties and give them an opportunity to respond.

33The Request for Reconsideration is essentially an attempt by the applicant to re-argue matters that were already argued at the hearing or to appeal the Decision. I have considered the applicant’s further evidence and submissions on this Reconsideration Request and my conclusions remain unchanged. The Tribunal does not have jurisdiction to hear the Application because it is untimely and the applicant has failed to establish a good faith reason for his delay. The Request for Reconsideration is denied for this reason.

ORDER

34The Request for Reconsideration is denied.