M.C. v. London School of Business and Finance Canada, 2015 HRTO 635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.C.

Applicant

-and-

London School of Business and Finance Canada

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: May 14, 2015

Citation: 2015 HRTO 635

Indexed as: M.C. v. London School of Business

APPEARANCES

M.C., Applicant

Self-represented

London School of Business and Finance Canada, Respondent

Daniel Lublin, Counsel

Introduction

1This is an Application alleging that the respondent discriminated against the applicant because of disability, sexual orientation and age with respect to employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Among other things, the applicant alleges that the respondent discriminated against him because of his sexual orientation when one of the respondent’s managers made offensive comments about his sexual orientation; and when the respondent terminated his employment on April 13, 2012, on the stated basis that the applicant did not “fit the company culture”. The applicant also alleges that his reluctance to participate in late-night parties and/or drinking – which he links to his age and certain disabilities – factored into the respondent’s decision to terminate his employment and that such decision was therefore also discriminatory on the basis of disability and age.

3The respondent denies that it discriminated against the applicant during his employment or terminated his employment on the basis of any Code ground. The respondent takes the position that the applicant’s employment was terminated “without cause” during the applicant’s probationary period, based solely on work performance. In any event, the respondent submits that the Application ought to be dismissed on a preliminary basis because of delay.

4In this regard, the respondent submits that the Application was not filed until February 4, 2014, which was 21 months after the date of the last event to which the Application relates (i.e. the applicant’s termination) and more than nine (9) months beyond the one-year time limit for filing an Application established in s.34 of the Code, which states:

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.

Late Applications

(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.

5The applicant acknowledges that his Application was filed late. However, he seeks to file his Application pursuant to s. 34(2) of the Code, which provides that an individual may file an Application more than one year after the date of the last incident in the series of incidents to which the Application relates if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to anyone affected by the delay.

6The applicant submits that the delay in filing his Application was incurred in good faith insofar as serious mental health issues interfered with his ability to file his Application before he did. The applicant submits that, following the termination of his employment in April 2012, he became very depressed and was even hospitalized after he attempted to commit suicide in April 2013, right around the time the one-year period referred to in s.34(1) of the Code was expiring. The applicant submits that he continued to experience severe mental disability following his release from hospital in April 2013 and that it was not until February 2014 that, with the support of his psychiatrist and others, he was finally able to file his Application with the Tribunal.

7The respondent disputes that the delay in filing the Application was due to the applicant’s mental disabilities. The respondent submits that the real reason for the delay in filing the Application was that the applicant was not aware of his rights under the Code until shortly before he filed his Application. In particular, the respondent points out that the applicant admits that he did not know that he could file an Application under the Code until January 2014, when a legal clinic that was helping the applicant apply for Ontario Disability Support Program benefits advised him that he could have filed a human rights Application against the respondent following the termination of his employment. The respondent submits that this reveals that the delay in filing the Application was not because of the applicant’s mental disabilities, but because the applicant was ignorant of his rights under the Code. This, the respondent submits, is not a good faith reason for the delay.

8In addition, the respondent disputes that the applicant’s mental disabilities disabled him to the extent that he could not file an Application earlier than February 2014. Among other things, the respondent submits that the fact that the applicant applied for Employment Insurance benefits in May or June 2013 and Ontario Works in December 2013 shows that the applicant was capable of filing a human rights Application at those times. The respondent also contends that the evidence fails to establish that there was no time prior to February 4, 2014 when the applicant was functioning well enough to file an Application with the Tribunal.

9The respondent also submits that it would be substantially prejudiced by the delay, if the Application were permitted to proceed, because certain of its former employees with knowledge of the issues in the Application are no longer employed by the respondent and/or no longer reside in Ontario.

10A preliminary hearing was held by telephone on November 20 and 21, 2014 for the purpose of hearing the parties’ evidence and legal arguments on the delay issue. During the telephone hearing, the applicant called his psychiatrist as a witness and also testified on his own behalf. The applicant also submitted a number of medical documents into evidence. The respondent did not call any evidence.

11For the reasons that follow, I am satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice will result to the respondent as a result of the delay. The applicant is therefore entitled to pursue the Application pursuant to s.34(2) of the Code.

Decision and analysis

12As noted above, there is no dispute that the Application was filed beyond the one-year time period contemplated in s.34(1) of the Code. The issue is whether the applicant is entitled to file his Application pursuant to s.34(2) of the Code. If the Tribunal is satisfied, on a balance of probabilities, that the delay was incurred in good faith and that no substantial prejudice will result to anyone affected by the delay, then the applicant is permitted to file the Application, pursuant to s.34(2) of the Code.

What is the period of “delay”?

13Before assessing whether the delay in filing the Application was incurred in good faith, it is important to clarify the period of “delay” that is under consideration.

14At one point during the preliminary hearing, the respondent suggested that, in order to be permitted to file an Application pursuant to s.34(2) of the Code, the applicant had to satisfy the Tribunal that he had a good faith reason for not filing an Application in respect of the entire period between the date of the last incident to which the Application relates (i.e. the termination of the applicant’s employment on April 13, 2012) and the date on which the Application was filed (February 4, 2014).

15However, I do not agree. According to s.34(2) of the Code, the purpose of which is to enable applicants to file Applications more than a year after the last incident to which the Application relates in certain circumstances, the applicant has to provide a good faith explanation only for the period of “delay” in filing the Application. As a matter of statutory construction, there cannot be said to be any “delay” within one year of the last incident to which the Application relates. An applicant has a statutory right to file an Application with the Tribunal at any point during the one-year period following the last incident in the series of incidents to which the Application relates, up to and including the very last day of the one-year period. As long as an applicant files an Application within the one-year period, there is no delay and therefore no obligation on the applicant to explain why the Application was not filed at some earlier point in the one-year period following the last incident to which the Application relates (although evidence of what occurred before the expiry of the one-year time limit may be relevant to whether the delay was incurred in good faith).

16It is only when an applicant fails to file an Application within the one-year period that the need to provide a good faith explanation for the “delay” arises. The period of “delay” thus extends from and includes the one-year anniversary of the last incident in the series of incidents to which the Application relates to the date on which the Application is actually filed. In other words, in this case, the period of “delay” under consideration is the more than nine-month period from April 13, 2013 to February 4, 2014, the date on which the Application was ultimately filed. (On this point, see also Kelly v. CultureLink Settlement Services, 2010 HRTO 977 at para. 65.)

Was the delay incurred in good faith?

17In order to show that delay in filing an Application was incurred in good faith, an applicant must satisfy the Tribunal that there is a reasonable explanation for the delay: Kelly v. CultureLink Settlement Services, above, at para. 62; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Having considered the evidence led at the preliminary hearing and the submissions of the parties, and for the reasons set out below, I am satisfied that the applicant meets this threshold.

18The applicant’s employment was terminated by the respondent on April 13, 2012. This means that, in the normal course, the applicant would have had until April 13, 2013 to file a human rights Application against the respondent alleging that the termination of his employment (and any other incidents in the series of incidents preceding the termination) was discriminatory. However, the evidence establishes that right around the time that the one-year time limit was expiring, the applicant was unable to file a human rights Application because of his mental disabilities. Specifically, the evidence establishes that the applicant was suffering from severe depression in April 2013 (and before April 2013) and was hospitalized on or about April 13, 2013 following a suicide attempt. The applicant was discharged from hospital on April 17, 2013. In the circumstances, I find that the applicant has a reasonable explanation for not filing a human rights Application prior to the expiry of the one-year time limit in s.34(1) of the Code on April 13, 2013. The applicant was clearly not in any state of mind to initiate legal proceedings against the respondent on or around April 13, 2013.

19I am also satisfied that the applicant had a good faith reason for not filing his human rights Application until February 4, 2014. (I note that, in its materials, the respondent submits that the Application was filed on February 3, 2014, and indeed the applicant did email his Application to the Tribunal on February 3, 2014. However, since the Application was received by the Tribunal after 5:00 p.m., it was deemed to have been filed on the following day, February 4, 2014.)

20The applicant has submitted a July 23, 2014 medical report from his psychiatrist substantiating that the delay in filing the Application prior to February 4, 2014 was attributable to the applicant’s mental disabilities. In his report, the applicant’s psychiatrist confirms that the applicant suffers from severe clinical depression and anxiety. The applicant’s psychiatrist describes the applicant as having symptoms of insomnia, severe anxiety with panic attacks where he is paralyzed, becomes agoraphobic, and is unable to think clearly. Specifically addressing the delay issue, the applicant’s psychiatrist writes:

… with the resulting conflictual termination of employment, this severely impaired [the applicant’s] ability to follow through and function such that his emotional state was impeding his ability to comply with filing by April 2013. It is not unusual for patients to neglect themselves and fail in advocating for themselves when they are paralyzed by anxiety and depression. It is with medical certainty that I give the opinion that [the applicant’s] emotional state was the leading determinant factor in his inability to file his application until February 2^nd^ of this year.

21The evidence contained in the applicant’s psychiatrist’s July 2014 report was bolstered by oral evidence given by the psychiatrist and the applicant himself during the preliminary hearing.

22The applicant’s psychiatrist testified that he had initially treated the applicant for depression and anxiety from 2007 to December 2008; and that the next time he saw the applicant was on August 20, 2013, approximately four months after the applicant’s discharge from hospital. The psychiatrist testified that when he saw him in August 2013, the applicant was not sleeping and was having difficulty concentrating and making decisions. Moreover, the applicant was still having active and persistent suicidal thoughts following his release from hospital in April 2013.

23As noted above, in his July 2014 medical report, the psychiatrist stated that the applicant’s disabilities prevented him from filing an Application by April 2013 or at any time before February 2014. During the preliminary hearing, the psychiatrist was specifically asked about his ability to give an opinion about the applicant’s ability to file an Application by April 2013, given that he had not resumed treating the applicant until August 20, 2013. The psychiatrist testified that he based this on what the applicant told him about what he had experienced prior to the August 2013 appointment. Specifically, the psychiatrist testified that it was clear to him, when he saw the applicant in August 2013, that the applicant had had a “tremendously difficult year” as a result of a number of major stressors in the applicant’s life, one of which was the termination of his employment in April 2012; and that the applicant was completely overwhelmed and had not been functioning.

24During the period from August 2013 to February 4, 2014, when the human rights Application was filed, the psychiatrist had a total of five appointments with the applicant: on August 20, 2013; September 11, 2013 (this one only by telephone); October 3, 2013; December 20, 2013; and January 24, 2014. The psychiatrist continued to treat the applicant after he filed his February 4, 2014 human rights Application, as well.

25It should be noted that the applicant’s psychiatrist testified that the applicant was taken to hospital in December 2013 after he had a seizure, which the applicant’s psychiatrist testified was related to the significant emotional instability the applicant was experiencing at the time.

26During the preliminary hearing, the applicant’s psychiatrist was asked to explain how the applicant’s mental disabilities had affected the applicant’s ability to file a human rights Application before February 2014. He testified that the applicant could not file his Application before February 2014 because he felt overwhelmed by the events he was dealing with, had a lot of negative thinking and was “not coping”. According to the psychiatrist, the applicant was not even functioning at 50 percent during the relevant period because of his severe depression. The psychiatrist testified that the applicant’s mental disabilities have caused the applicant to have episodes where he was effectively immobilized because of his disabilities, staying home and not attending to the regular duties of the day, such as taking care of himself or eating. Addressing the applicant’s ability to file a human rights Application specifically, the psychiatrist testified that, because of his emotional state, the applicant could not fathom putting his thoughts together about what had happened to him or advocating for himself in the employment area. He described the applicant as having “shut down”. The psychiatrist explained that, even though the applicant might have realized that he had to do certain things, his depression and related feelings caused him not to act. The psychiatrist explained that the applicant’s experiences were consistent with what is commonly experienced by people with clinical depression. In particular, the psychiatrist testified that a problem following through or inaction is very common in individuals, like the applicant, who are clinically depressed.

27In particular, the applicant’s psychiatrist testified that it is not at all unusual for persons who are depressed to feel completely devastated and that they have no ability to influence what is happening in their lives. He testified that individuals suffering from depression do not have the same problem-solving ability and self-preservation ability as people who are not depressed. He explained that it is very common for persons with depression to basically become paralyzed and to stop doing what they need to do for themselves, as well as their families and/or pets. He testified that understanding this “paralyzing state” is key to understanding a person who is suffering from depression. As noted above, the psychiatrist confirmed that the applicant was also paralyzed by anxiety in addition to his depression.

28The psychiatrist testified that people with severe depression, such as the applicant, often feel inadequate, incompetent, and useless. He described depression as almost psychotic in nature in the sense that it can affect how people see themselves and how they cannot cope. He explained that their view of the world and themselves is distorted and they really feel that they cannot have an impact in their day-to-day lives. Related to this, the applicant’s psychiatrist testified that treating depression is not limited to prescribing medication, but also trying, through therapy, to help people to change the distorted thinking that is characteristic of depression and to realize that misconceptions or false beliefs allow the person to stay trapped in their inability to act. The psychiatrist testified that therapy can help a person with depression come to realize that there are things that they can do to influence their plight, which can lead to them eventually helping themselves and making some proactive attempts at feeling better. The psychiatrist confirmed that he provided this type of therapy to the applicant. The applicant was also prescribed a number of medications for his mental disabilities.

29Although he felt that the applicant could speak to it best, the psychiatrist testified that he understood that, some months after resuming psychiatric treatment, and after getting support from people in his life who encouraged him to take care of the things he needed to take care of, the applicant was finally able to get the energy together to file his Application, even though at that point it was late.

30The applicant’s evidence about how his mental disabilities interfered with his ability to file a human rights Application before February 2014 was consistent with that of his psychiatrist. When he testified, the applicant specifically confirmed the accuracy of his psychiatrist’s evidence about the impact of his mental disabilities on him and his ability to file a human rights Application earlier than he did. He also adopted into evidence the written submissions he made to the Tribunal on the delay issue in his Reply and other correspondence.

31The applicant’s evidence was that he was not able to file his human rights Application against the respondent earlier than he did because of his mental disabilities, which he described as “devastating”. The applicant testified that he sank into a severe depression and a state of anguish following the April 2012 termination of his employment by the respondent, culminating in a suicide attempt in April 2013. The applicant’s evidence was that, during the relevant period, he was experiencing feelings of deep sadness, despair and hopelessness. He stated that his mental disabilities made him feel tired, confused and unmotivated, and impaired his ability to think clearly and to make decisions. The applicant described himself as being in a state of emotional paralysis, unable to “break through to the surface” enough to seek the help he needed.

32The applicant’s evidence was that this began to change gradually after he got into treatment with his psychiatrist in August 2013. The applicant testified that he was finally able to file his Application in February 2014 because he had gotten a support system in place – his psychiatrist and others – that helped him to start to see things from a different perspective, to realize (from his perspective) that he had been discriminated against and to do something about it. The applicant stated that it was through ongoing treatment with his psychiatrist that he was gradually “pulled up from the depths” and was able to get some emotional clarity around his experiences with the respondent. The applicant described his support system as giving him the foundation, courage and structure he needed to look back and revisit his experiences with the respondent and to file the Application when he did, even though he knew at that point that it was outside the one-year time frame in s.34(1) of the Code.

33In addition to the applicant’s own evidence and that of his psychiatrist, the applicant also submitted a “Disability Tax Credit Certificate” completed on May 1, 2014 by another physician, stating that the applicant had marked restriction in performing the mental functions necessary for everyday life “all or substantially all” of the time, beginning at some point in 2013. In this document, the applicant’s doctor describes the applicant’s impairments as including anhedonia, anergia, concentration difficulties, a lack of motivation and insomnia, all associated with depression and anxiety.

34The evidence adduced through the applicant’s psychiatrist and the applicant himself was clear and consistent, rich in detail and uncontradicted. It was also consistent with the documentary evidence (including the applicant’s April 2013 hospital discharge records, December 2013 records relating to the applicant’s hospitalization following a seizure, the May 1, 2014 “Disability Tax Credit Certificate” and the psychiatrist’s July 2014 letter). I find the evidence presented by the applicant at the preliminary hearing to be credible as well as compelling.

35The respondent argues that the applicant’s psychiatrist’s evidence should be given little or no weight, because the psychiatrist saw the applicant only five times between August 20, 2013 and February 4, 2014. However, I do not agree. The psychiatrist was treating the applicant on a regular and, to my mind, fairly frequent basis during the relevant period. Moreover, he had treated the applicant previously and he continued to treat him after February 2014, as well. As such, I am satisfied that the psychiatrist had a sufficient basis upon which to give the evidence he did about the applicant’s disabilities and their impact on the applicant’s functioning.

36In his written submissions and during the oral hearing, the applicant urged the Tribunal to render a decision in his case that reflects an accurate understanding of the nature of mental illness. The applicant submits that there is a lot of misunderstanding about mental illness and how it impairs individuals from carrying out the functions of their daily lives. The applicant submits that although he was not in a physical coma, which would be readily accepted as a legitimate reason for not filing a timely Application, he was basically in an “emotional coma”, which impeded him from filing an Application before February 2014, as effectively as any physical obstacle could have done. The applicant submits that it should not be more difficult for individuals suffering from mental illness to satisfy the Tribunal that the delay in filing with their Application was incurred in good faith because the disabling condition that impedes them from filing a timely Application is mental and not physical in nature. The applicant submits that it is incumbent on the Tribunal, of all institutions, to understand and acknowledge the true nature of mental disabilities and their impact on the individuals who have them and to reflect this understanding when adjudicating whether delay in filing an Application has been incurred in good faith. I agree with the applicant’s submission in this regard.

37In my view, the evidence in this case clearly establishes, on a balance of probabilities, that there was a reasonable explanation for the delay in filing the Application and that the delay in filing the Application was incurred in good faith. The evidence of the applicant and his psychiatrist, as well as the documentary evidence, establishes that the applicant’s ability to file a human rights Application against the respondent was significantly impaired by the applicant’s depression and anxiety from April 2013 onwards (and indeed prior to April 2013). In particular, from April 2013 continuing into January 2014, the applicant was in a state of despair that prevented him from even being able to think about taking action against the respondent. In addition to the impact on the applicant’s emotional state, the applicant’s mental disabilities significantly interfered with the applicant’s ability to think clearly, to make decisions, to concentrate, and to advocate for himself, all of which are things which the applicant would have needed to do to be able to file a human rights Application. The evidence also establishes that once the applicant recovered from his disabilities to the point that he was able to start putting his thoughts together about his experiences with the respondent and to take steps to advocate for himself, in January 2014, the applicant acted with relative swiftness to put his Application together and to file it with the Tribunal by February 4, 2014. In the circumstances, I am satisfied that the applicant has provided a reasonable explanation for not filing his Application prior to February 4, 2014 and that the delay in filing the Application was incurred in good faith.

38In coming to this conclusion, I have carefully considered but ultimately cannot accept the respondent’s arguments that the Tribunal should not be satisfied that the delay in filing the Application was incurred in good faith.

39During the preliminary hearing, the respondent argued that the applicant did not establish that he lacked “capacity” to file a human rights Application throughout the period from April 2013 to February 2014, and that the Tribunal should accordingly not be satisfied that the delay in filing the Application was incurred in good faith.

40At the outset, I would observe that I think the respondent overstates what is required of applicants to be permitted to file an Application under s.34(2) of the Code. To meet the “good faith” requirement for filing a late Application under s.34(2) of the Code, an applicant does not necessarily have to prove that he lacked mental capacity to file an Application any earlier than he did. Nor does s.34(2) of the Code create an “impossibility standard” in the sense that it does not require an applicant to establish that it was impossible for him to file his Application any earlier than he did. The issue, rather, and as I have stated above, is whether the applicant has a reasonable explanation for not filing the Application before he did.

41In my view, this is consistent with the wording in s.34(2) of the Code and the principles of statutory interpretation.

42Like all statutory provisions, the words in s.34(2) need to be interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. It is also well established that special rules of construction apply to human rights statutes, because of the quasi-constitutional protections they offer. Human rights legislation must be given a broad, purposive and liberal interpretation that accords with the remedial purpose of such statutes: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., [2008] 2 SCR 604, 2008 SCC 45 at para. 65-66.

43In my view, insofar as it provides that a person “may apply” to the Tribunal late in certain circumstances, s. 34(2) of the Code is properly regarded as a permissive, if not also rights-conferring, provision. It ought to be interpreted in a purposive manner that gives effect to the wording in the provision, in the context of the overall statute, and mindful of its remedial purpose. It would be inconsistent with the plain and ordinary meaning of the words “good faith,” and defeat the purpose of s.34(2), to interpret it as imposing a requirement on applicants to prove that they lacked capacity to file an Application during the period of delay, or to prove that they could not have possibly filed an Application earlier than they did. Such an interpretation would also be at odds with the discretionary nature of s.34(2): Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174; Colhoun v. Hydro One Networks Inc., 2014 ONSC 163; Cain v. City of Toronto et al., 2011 ONSC 2578.

44If the Legislature had wanted relief from the one-year time limit in s.34(1) of the Code to be available only in circumstances where the applicant was incapacitated from filing an earlier Application, it could have provided for that. However, it did not do so. Rather, in establishing a “good faith” standard in s.34(2), the Legislature opted to make it possible for applicants to file late Applications, provided that the Tribunal is satisfied both that there is a reasonable explanation for the delay and that the respondent will not be substantially prejudiced by the delay. (See also Colhoun, above, where the Ontario Divisional Court found that the Tribunal had properly and reasonably applied s. 34(2) of the Code in a decision, which stated that the applicant needs to provide a “reasonable explanation” for delay in filing an Application in order to show that it was incurred in good faith: Colhoun v. Hydro One Networks Zone 2, 2013 HRTO 312.)

45As stated above, in the circumstances of this case, I am satisfied that there was a reasonable explanation for the delay in filing the Application. That said, I wish to address the respondent’s specific arguments that the applicant has not established that he lacked capacity to file an Application before February 2014.

46The respondent relies on the psychiatrist’s evidence that the applicant would have had “ups and downs” during the relevant period – and that the applicant would have been functioning at a higher level during an “up” period than during a “down” period – to argue that the applicant had the capacity to file a human rights Application during the relevant period. Specifically, the respondent submits that the applicant could have filed a human rights Application during one of his higher-functioning periods, between April 13, 2013 and February 4, 2014.

47Leaving aside that I do not think that s.34(2) requires an applicant to prove that he was incapacitated every single day before he filed the Application, the evidence does not support the respondent’s argument. Although the psychiatrist testified that the applicant functioned at a higher level during his “up” periods than he did during his “down” periods, there is no evidence that the applicant was functioning to a sufficiently high level during any of his “up” periods to be able to file a human rights Application against the respondent. The psychiatrist testified that, at some points during the relevant period, the applicant was not even able to meet his most basic needs, such as eating, and he struggled with persistent suicidal thoughts. The fact that the applicant might have had some periods where he was functioning at a higher level than that does not mean that he was functioning well enough to file a human rights Application against the respondent.

48The respondent also points to the fact that the applicant’s medications were relatively constant throughout the period from August 2013 to February 2014 to argue that the applicant was no more disabled in February 2014 than he was in August 2013, and that he could have filed his Application in August 2013. I cannot accept this argument. It would not be sound for me to conclude that the applicant was no more disabled in August 2013 than he was in February 2014, based solely on what medications he was prescribed, particularly where such conclusion would conflict with the credible evidence of the applicant and his psychiatrist that the applicant was severely disabled in August 2013 and gradually improved to the point that he could file his Application in February 2014.

49The respondent also contends that the applicant’s ability to do certain other things during the period of delay means that the applicant also had the capacity to file a human rights Application against the respondent.

50Specifically, the respondent points to the psychiatrist’s evidence that the applicant entered into a “safe contract” with him in August 2013, which was an agreement pursuant to which the applicant agreed to contact his psychiatrist if he did not feel better and to follow his treatment plan in order to avoid being involuntarily committed to hospital by his psychiatrist. The respondent argues that if the applicant had the mental capacity to enter into such an agreement with his psychiatrist, then he also had the mental capacity to file a human rights Application.

51I do not agree that the applicant’s ability to enter into a “safe contract” with his treating psychiatrist in August 2013 is a reason to find that the applicant was similarly capable of filing a human rights Application against the respondent. The uncontradicted and credible evidence before me is that the applicant was still struggling with active and persistent suicidal thoughts in August 2013. That was the whole reason for the “safe contract”. The evidence overwhelmingly demonstrates that the applicant was not in a frame of mind to be able to file a human rights Application in August 2013. It is not reasonable to expect an individual to be able to think about commencing a legal proceeding against someone or to take action in that regard when he or she is struggling with a desire to end his or her life. In any event, agreeing to a “safe contract” with one’s treating psychiatrist in what were clearly serious medical circumstances is fundamentally different from launching a legal proceeding against a former employer. The fact that the applicant could do the one does not mean that he could do the other.

52The respondent also argues that the fact that the applicant applied for Employment Insurance sickness benefits in May or June 2013 and social assistance in December 2013 means that he was capable of filing a human rights Application against the respondent in the same time frame.

53Before addressing the respondent’s argument in this regard, it is helpful to set out some background.

54The applicant testified that, following the termination of his employment by the respondent in April 2012, he received regular Employment Insurance benefits. As noted above, the applicant was hospitalized in April 2013 following a suicide attempt. The applicant testified that, before he was discharged from hospital, a psychiatric nurse recommended that the applicant look into whether he could apply for Employment Insurance sickness benefits, so that he could have some income to meet his basic needs while getting a psychiatrist and a support system in place and just generally trying to cope.

55The applicant testified that he went to a Service Canada centre approximately a week after his discharge from hospital and that he and one of the agents there called Employment Insurance together to see if the applicant would be eligible for sickness benefits. The applicant testified that he was told over the phone that he had approximately two weeks of regular benefits left on his claim and that he should finish the old claim and then apply for sickness benefits. Consistent with this, the applicant testified that, in May or June 2013, after his regular benefits had run out, he went online and applied for sick benefits. In doing so, the applicant testified that he submitted some documents that Employment Insurance had asked for, but he could not recall exactly what they were. He testified that it was nothing complicated. The applicant testified that his claim for sick benefits was denied by Employment Insurance because he did not have quite enough hours to qualify.

56Some months later, in December 2013, the applicant testified that he applied for Ontario Works benefits, which is a form of social assistance.

57As noted above, the respondent urges me to reject the applicant’s and his psychiatrist’s evidence that the applicant could not file a human rights Application before February 2014 on the basis that the applicant applied for EI sick benefits in the spring of 2013 and Ontario Works in December 2013. However, one problem with this argument is that neither witness was cross-examined on this point. In particular, it was never put to the applicant or his psychiatrist that the applicant’s ability to apply for EI and social assistance was at odds with their evidence that the applicant was emotionally and mentally impaired from filing a human rights Application before he did. In the circumstances, I am not prepared to reject the witnesses’ evidence that the applicant could not file a human rights Application until February 2014, based on his earlier attempts to obtain EI and social assistance benefits.

58In any event, in my view, the mere fact that someone is capable of applying for what are in effect subsistence-level benefits from the government is not a sound basis upon which to conclude that the individual in question should have been able to launch what is essentially a civil proceeding against another party. I think it is reasonable to infer that initiating a legal proceeding against a former employer, accusing it of discrimination, would require considerably greater powers of concentration, clear thinking and decision-making ability – abilities that were all impaired as a result of the applicant’s mental disabilities – than applying for EI and social assistance benefits. I would further expect that considerably more emotional wherewithal would be required to commence an adversarial process such as a human rights Application against a former employer than applying for government benefits. This is consistent with and supported by the applicant’s testimony that, whereas he was unable to make sense of his experiences with the respondent and did not have the “courage” to complain about the way he was allegedly treated before 2014, the online application for EI sick benefits was “nothing complicated”. I also note the applicant’s submission that he did not file his Application before February 2014 because he did not “have it in him” to take “this battle” to the respondent. I would add that my conclusion that the applicant was not able to file a human rights Application earlier than he did, even though he was able to apply for EI and social assistance, is consistent with the jurisprudence, albeit from a different context, recognizing that a person can be capable in some spheres and not in others. (See, for example, Calvert (litigation guardian of) v. Calvert, 1997 CanLII 12096 (ONSC))

59In any event, the medical evidence establishes on a balance of probabilities that the applicant was disabled from initiating a human rights proceeding in the spring of 2013 (when he applied for EI sick benefits) and also in December 2013 (when he applied for social assistance). The applicant and his psychiatrist testified that the applicant was severely depressed following an April 2013 suicide attempt; and that he continued to be severely depressed and actively suicidal when he started seeing his psychiatrist again in late August 2013. As I have stated above, it would be completely unreasonable to expect the applicant to have filed a human rights Application when he was in that mental and emotional state of mind. Similarly, the evidence of both the applicant and his psychiatrist establishes that, although the applicant’s condition had improved somewhat by December 2013, as compared to August 2013, the applicant continued to struggle with symptoms of depression and anxiety and had not improved to the point where he could have filed a human rights Application. I also note that the applicant was briefly hospitalized on December 21, 2013, following a seizure that his psychiatrist linked to significant emotional instability at that time. Given the disability-related difficulties the applicant was coping with during the relevant time frame, I am satisfied that the applicant has a reasonable explanation for not filing an Application in the spring of 2013, or in December 2013, or indeed any earlier than he did.

60The respondent also contends that the applicant drove to Florida from Ontario on two separate occasions during the period of delay, and that this undermines the applicant’s position that one of the reasons he could not file an Application before he did was because he had difficulty concentrating, related to his disabilities. However, there is no evidence that the applicant drove to Florida during the relevant period (i.e. prior to February 4, 2014). The applicant testified that he drove to Florida in March 2014 and again in June 2014, and that, at least with respect to the March 2014 trip, he shared the driving with someone else. The fact that the applicant was able to drive to Florida at some point after he filed the human rights Application is irrelevant to whether the delay prior to February 2014 was incurred in good faith. In any event, I am not persuaded that the applicant’s ability to drive, even for a long distance, would be a basis upon which I could reasonably conclude that he was able to initiate a legal proceeding such as a human rights Application.

61I now come to the respondent’s argument that the delay in filing the application was attributable not to the applicant’s mental disability, but rather to the fact that the applicant did not know he could file an Application until he was so advised by a legal clinic at some point in January 2014.

62As noted above, the applicant acknowledged in his Application and during his testimony that he did not know that he could file a human rights Application against the respondent until he got advice to that effect from a legal clinic that was helping the applicant apply for ODSP benefits in or around January 2014. (In final argument, the respondent argued that the applicant had received this legal advice in late December 2013 or January 2014. However, although there was some initial confusion about the dates, the applicant testified a couple of times that it was in January 2014 and under cross-examination he agreed with the respondent’s counsel that it had been in January 2014.)

63As noted above, the applicant testified that he applied for Ontario Works benefits in December 2013. The applicant testified that at the time he was applying for Ontario Works benefits, he was asked if he had any disabilities and the applicant confirmed that he did. The applicant testified that Ontario Works then automatically referred the applicant to the Ontario Disability Support Program (“ODSP”) to see if he qualified for disability benefits under that system. The applicant testified that he subsequently received a form to fill out, stating how his disability was affecting him. There was also a form for the applicant’s doctor to complete.

64The applicant testified that he contacted a legal clinic to find out more about how ODSP worked and what he needed to do. The applicant testified that he could not remember the exact date he contacted the legal clinic, but it was in January 2014. The applicant testified that he told the legal clinic what he had been through and they advised him that he could have filed a human rights Application against the respondent. The applicant testified that the legal clinic told him that the Application was already late and that it would not assist him with it. However, as noted above, the applicant testified that he proceeded to file the Application on his own because, at that point, he was finally able to look back and make sense of his experiences and also had enough of a support system in place to give him the foundation he needed to complain about what he perceived to be the respondent’s discriminatory treatment of him. The applicant emailed his Application against the respondent to the Tribunal not long afterwards, on February 3, 2014. (As noted above, the Application was deemed to have been filed on February 4, 2014 because it was emailed after 5:00 p.m.)

65Based on the applicant’s admission that he did not know that he could file a human rights Application against the respondent until he was so advised in January 2014, the respondent argues that it was the applicant’s ignorance of his rights under the Code, and not his mental disabilities, that led to the Application not being filed until February 2014. The respondent submits that failing to file a timely Application because one is ignorant of one’s rights under the Code has been held not to be a good faith reason for the delay.

66The respondent further submits that the fact that the applicant filed an Application with relative swiftness after learning that he could do so shows that his disability was not so disabling that he could not have put a complaint together earlier and supports its argument that it was the applicant’s ignorance of his rights, not his disabilities, that led to the delay.

67The applicant takes issue with the respondent’s suggestion that the real reason his Application was not filed until February 4, 2014 was because of the applicant’s ignorance of his rights under the Code, as opposed to his disabilities. According to the applicant, the respondent’s submission in this regard betrays a lack of understanding about the pervasive effect of mental illness.

68While acknowledging that he did not know about his legal right to file an Application until shortly before he did so, the applicant maintains that his depression and anxiety interfered not only with his ability to start a legal “battle”, but also his ability to seek legal advice or even put his thoughts together about what had happened to him. The applicants submits that it was not until 2014 when he was advised that he could file a human rights Application against the respondent that he was in the mental and emotional state that he could take stock of his experiences and take some steps to advocate on his own behalf. Prior to that time, because of his depression, the applicant submits that he could not function to do something like seek legal advice or even cope with looking back and thinking clearly about what had happened. He submits that it was the most he could do just to survive. The applicant submits that the conversation he had with the legal clinic in January 2014 was “pivotal” in the sense that it was at that point in time that the applicant, having been back in psychiatric treatment for some months and having built up a support system, was finally able to take in the full measure of his experiences with the respondent and to advocate for himself.

69I agree with the respondent to this extent: if I were of the view that the reason the applicant failed to file his Application until February 4, 2014 was simply because he was ignorant of the law and failed to make timely inquiries as to his rights, unrelated to any disability or other Code-protected ground, I would not be satisfied that the delay in filing the Application was incurred in good faith. However, I do not think this case is that simple. Based on the evidence before me, I cannot agree that the real reason the Application was not filed before February 4, 2014 was simply because the applicant was not aware of the law. It is true that the applicant did not find out about his rights under the Code until January 2014, well after the expiry of the one-year time limit. However, the thrust of the evidence before me, which I find credible, establishes that, because of his mental disabilities, it was not until January 2014 that the applicant was able to start putting his thoughts together and to take steps to advocate for himself by filing an Application against the respondent, once becoming aware that he could do so. The reality, based on the evidence before me, is that the applicant was in no condition to make inquiries about his rights under the Code at any point prior to January 2014. Once he discovered, in the context of applying for ODSP benefits, that he was able to file a human rights Application against his former employer and at a time when his disabilities did not prevent or impair him from acting upon this information, the applicant took expeditious steps to file his Application. In this way, I am satisfied that the proximate cause of the applicant’s failure to make inquiries to ascertain his rights and to file an Application at an earlier time was his mental disabilities, not simply ignorance of his rights under the Code.

70The above reasoning is in keeping with the Tribunal’s decision in Lutz v. Toronto (City), 2009 HRTO 1137, a case relied upon by the respondent. In Lutz, the Tribunal recognized that failure to act in ignorance of one’s rights may amount to “good faith” in some circumstances. However, delay will not be found to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights; or where the applicant has not established that he had no reason to make inquiries about his rights. (See also Lutz v. Toronto (City), 2010 HRTO 769.) As stated above, the applicant’s failure to make inquiries about his rights in the case at hand was due to his mental disabilities, not wilful blindness. Moreover, having “no reason” to make inquiries about one’s rights encompasses a situation where the applicant has a legitimate reason for failing to make inquiries about his rights, such as in the instant case, where the applicant was impaired in his ability to make inquiries about his rights due to mental disability.

71As for the fact that the applicant figured out his legal options at some point in January 2014, but did not file his Application until February 4, 2014, I am also satisfied that this was reasonable. The evidence establishes that the applicant put his Application together and filed it with the Tribunal within weeks of figuring out what he needed to do. I am satisfied that the delay from January to February 4, 2014 was also incurred in good faith, on the basis that the applicant acted expeditiously to file the Application upon becoming aware of his right to do so and at a time when his disabilities no longer prevented him from doing so.

72In order to accept the respondent’s argument that the delay was due to the applicant’s ignorance of the law and not his disability, I would have to find that the applicant could have filed his Application before February 2014. However, the evidence establishes that the applicant’s disability would have significantly interfered if not prevented him from filing an application before February 2014, even if he had known all along that he could file an Application with the Tribunal. It is true that it so happened that the applicant learned about his right to file an Application right around the time that he was capable of starting to put an Application together. However, the fact that these things coincided is not a fair basis upon which to deprive the applicant of his right to file an Application under s.34(2) of the Code, given that the applicant’s disability significantly interfered with, if not prevented him from, filing an Application before February 2014, whether he had known he could file an Application or not.

73For the above reasons, I am satisfied that the delay in filing the Application was incurred in good faith.

Substantial prejudice

74As noted above, in order to find that an applicant may file an Application more than one year after the last incident in the series of incidents to which the Application relates, the Tribunal must be satisfied not only that the delay was incurred in good faith, but also that no substantial prejudice will result to anyone affected by the delay. The onus of satisfying the Tribunal that it would be substantially prejudicing by the delay rests on the party asserting such prejudice: Prescod v. National Steel Car Limited, 2011 HRTO 2244 at para. 13.

75In this case, the respondent submits that it would be substantially prejudiced by the applicant’s delay in filing the Application. The respondent points out that the Application alleges that the respondent discriminated against the applicant during the course of his employment and also by terminating his employment. The respondent submits that the owner of the respondent business was the person who decided to terminate the applicant’s employment in April 2012 and acknowledges that that person is available to testify as to the reasons for the termination of the applicant’s employment. However, the respondent argued at the preliminary hearing that it will be substantially prejudiced by the delay in filing the Application if the applicant is permitted to pursue his allegations of discriminatory treatment during the course of his employment. In this regard, the respondent contends that three of the witnesses it would wish to call to give evidence regarding events that allegedly occurred during the course of the applicant’s employment (i.e. from February to April 2012) are no longer employed by the respondent. I note that the manager who the applicant alleges made derogatory remarks to the applicant about his sexual orientation during the applicant’s employment was not identified by the respondent as one of the witnesses who is no longer employed by the respondent and/or no longer residing in Ontario.

76The respondent further submits that it “understands” that such individuals are no longer living in Ontario and that it would have “substantial difficulties” obtaining the evidence of these witnesses prior to and during any hearing of this matter. During the preliminary hearing, the respondent submitted that it had not been able to contact these individuals to get information about this matter. However, the respondent has not provided any information about any efforts it has made to date to contact the potential witnesses in question and no explanation as to why such witnesses would be unable to give evidence at the hearing, even if they are no longer employed by the respondent or residing in Ontario.

77For his part, the applicant submits that the respondent is making an excuse not to reach out to former employees, because they will not support the respondent’s case. The applicant indicates that he believes that at least one of the allegedly unavailable witnesses will support his case.

78Leaving aside the fact that the respondent called no evidence to establish substantial prejudice, I am not satisfied, based on the respondent’s submissions, that the respondent will suffer any substantial prejudice as a result of the delay in filing the Application. There are a number of reasons for this.

79First, I note that other than asserting that the three witnesses in question are the ones the respondent would seek to call as witnesses at a hearing of the Application, the respondent has offered no information about what the potential witnesses’ anticipated evidence would be or why it would be relevant or important to the issues to be determined in this case. In the absence of such information, the Tribunal is not in a position to assess whether the unavailability of such witnesses to testify at the hearing, if they were truly unavailable (which has not been established), would result in prejudice to the respondent, much less “substantial” prejudice.

80Second, even if the respondent had established in evidence that a number of its witnesses were former employees who had moved outside of Ontario, this would not be a basis for finding that the respondent would be substantially prejudiced by the delay in filing the Application. The respondent has not put forward any cogent explanation as to why the fact that persons are no longer employed by it and/or no longer residing in Ontario means that such individuals could not be available to testify at a hearing. The respondent merely asserts that such individuals would be unavailable.

81Further, even if I were persuaded that one or more witnesses were unavailable because they are no longer working for the respondent and/or are no longer residing in Ontario, there is no basis upon which I might conclude that such unavailability was because of the delay in filing the Application. If the potential witnesses in question left the respondent’s employ or became unavailable within one year of the last incident to which the Application relates (i.e. before April 13, 2013), then any prejudice that the respondent might assert could not be attributed to the delay in filing the Application. Accordingly, this would not be a reason to prevent the applicant from filing an Application under s.34(2) of the Code. Put another way, there is no basis upon which I might conclude that the respondent’s ability to respond to the Application, filed in February 2014, is any different than it would have been had the Application been filed within one year of the last incident to which the Application relates (i.e. by April 13, 2013). In this case, the respondent provided no information about when the three witnesses in question left its employ or Ontario (although the applicant pleads in his Reply that one of them left the respondent’s employ well before the expiry of the one-year time limit). Accordingly, even if I were satisfied that the respondent would be substantially prejudiced by the fact that potential witnesses no longer work for it and/or no longer reside in Ontario (which I am not), I could not conclude based on the submissions before me that such substantial prejudice results from the delay in filing the Application.

82Finally, in its May 2014 Response to the Application, the respondent asserts that it would be substantially prejudiced because, even if the three witnesses in question could be located, the respondent would be prejudiced by their inability to accurately recall events that transpired in early 2012; and further prejudiced by its inability to retrieve, access or rely on documents that would have assisted it in defending the allegations. These submissions are in the nature of bald assertions and are speculative. The respondent does not explain the basis for its assertion that witnesses’ memories might have faded as a result of the Application having been filed more than nine months late. Nor does the respondent identify, for example, any documents that are no longer available to it or link the unavailability of such documents to delay. As a result, I find the submissions insufficient to satisfy the Tribunal that substantial prejudice “will result” because of the nine-month delay in filing the Application, if it is to proceed.

83For these reasons, I am satisfied that no substantial prejudice will result to anyone affected by the delay in filing the Application.

Anonymization

84Rule 3.11 of the Tribunal’s Rules of Procedure provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

85Given the highly sensitive nature of the medical information in this case, during the November 21, 2014 conference call hearing, I heard submissions from the parties as to whether this decision should be anonymized in order to protect the applicant’s identity and directed the parties to the Tribunal’s Practice Direction on Anonymization of HRTO decisions.

86The applicant requested that he be identified in this proceeding by his initials, in accordance with the Practice Direction. The respondent did not oppose this per se. However, the respondent took the position that, if the applicant’s identity was protected by anonymization, then it was only fair that the respondent’s identity should also be protected. The respondent also submitted that a decision indicating that allegations of discrimination had been made against it would hurt its reputation. The applicant took no position on whether the respondent should also be anonymized.

87The Tribunal’s Practice Direction on Anonymization of HRTO Decisions explains that anonymization orders are only made “in exceptional circumstances”. It states in relevant part:

While all requests for anonymization are considered on a case-by-case basis, the HRTO’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that “human rights applications often include personal information” and thus it will look for “exceptional conditions of sensitivity or privacy necessitating anonymity” before granting such an order. Some of the principles underlying this approach were discussed in [C.M. v. York Region District School Board, 2009 HRTO 735]:

…this Request raises important issues about the openness of the Tribunal process. An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. …it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

The HRTO has granted a request for anonymization where there were specific threats to personal safety, where there were parallel criminal proceedings arising from the same facts and relating to an alleged sexual assault, and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis.

88In this case, because of the highly sensitive medical information relating to the applicant’s mental health, I was satisfied at the preliminary hearing that the name of the applicant should be anonymized. This is in keeping with the Tribunal’s Practice Direction, which specifically contemplates anonymizing a party where a decision contains information of a highly sensitive nature about that party or information concerning an acute mental health crisis. Since this decision contains both highly sensitive medical information and information relating to the applicant’s acute mental health crisis, I am satisfied that this is an exceptional case in which it was appropriate for me to exercise my discretion to anonymize the applicant.

89However, I am not persuaded that there is a principled basis for me to similarly anonymize the respondent. Although I am not unsympathetic to the respondent’s position on this issue, at the end of the day, the respondent’s concern that its reputation may be harmed if members of the public know that human rights allegations have been made against it is not an exceptional circumstance that justifies a departure from the principle of open justice that ordinarily applies in cases before the Tribunal. The respondent has not identified any particular issues regarding sensitive or highly private information that would warrant anonymizing the respondent. Moreover, the fact that the Tribunal has decided that exceptional circumstances exist that warrant anonymizing the applicant does not mean that the respondent is automatically also entitled to be anonymized. The Tribunal has to determine whether each individual party ought to be anonymized, based on the applicable criteria. Although I can certainly understand the respondent’s perspective, the circumstances of this case do not warrant anonymization of the respondent.

NEXT STEPS

90In sum, the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice will result because of the delay. The applicant is therefore permitted to file the Application under s.34(2) of the Code. The Application will continue to be processed by the Tribunal.