Verreault v. Ontario (Community and Social Services), 2015 HRTO 836

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Verreault

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community and Social Services

Respondent

DECISION

Adjudicator: Brian Cook

Date: June 23, 2015

Citation: 2015 HRTO 836

Indexed as: Verreault v. Ontario (Community and Social Services)

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant had an employment contract with the respondent that started on October 21, 2013 and was to end on December 31, 2013. The applicant alleges that the contract was ended early and not renewed because of discrimination on the basis of disability. The applicant alleges that she applied for a similar job in December 2013 and that she was not considered for that job and that this too was discrimination based on disability.

2The Application was filed on March 2, 2015. Section 34 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.

(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.

3Since it appeared that the Application was not filed within one year of the alleged discrimination, the Tribunal sent the applicant a Notice of Intent to Dismiss because of delay and invited the applicant to make submissions.

4Submissions were received on May 28, 2015 from R. Mitchell Rowe, counsel. At the time the Application was filed, the applicant was self-represented. On behalf of the applicant, Mr. Rowe argues that the Application should not be dismissed for delay, submitting that there is a good faith explanation for the delay.

5The Application has not been delivered to the respondent, pending a conclusion on the delay issue.

Submissions

6In his submissions on the applicant's behalf, Mr. Rowe submits that grievances were filed in December 2013 regarding the events alleged in the Application and that the grievances were eventually withdrawn in February 2014. Mr. Rowe advises that subsequently, the applicant sought a meeting with a Director at the respondent’s offices to discuss the termination of her employment but that she was unable to arrange a meeting until September 2014. According to Mr. Rowe, after that meeting, the applicant concluded that she would have to submit a formal complaint asserting discrimination. She then prepared the detailed history of the alleged events that she submitted to the respondent. As Mr. Rowe notes, these same documents were submitted with the Application to explain the basis for the Application.

7Mr. Rowe submits that the applicant’s complaint to the respondent following the September 2014 meeting shows that the applicant had the intention to file an Application with this Tribunal during the one year period before the Application was filed, although the intent was nor realized until March 2015.

8Mr. Rowe further advises that the applicant suffered from a number of medical difficulties that made it difficult for her to file the Application within the one year period. In support of this, he has filed a report from a respirologist and a report from her family doctor, as well as a print-out of medications she has been prescribed.

Conclusions

9The Application was filed on March 2, 2015 and so the one year period referred to in section 34 was the period from March 2, 2014 to March 2, 2015. The allegations to which the Application refers concern the applicant’s employment and the end of that employment in the period from October to December 2013. To be timely, the Application would have had to be filed by December 2014. It was therefore filed about two months late.

10The applicant’s meeting with the Director in September appears to have confirmed that nothing would be done unless the applicant filed a formal complaint which she apparently did. Had the applicant filed an Application with this Tribunal at the same time, it would have been filed in time.

11The Tribunal has consistently held that waiting for the conclusion of an internal complaints process does not in itself provide a good faith explanation for delay under section 34 of the Code.

12Mr. Rowe indicates that the applicant experienced a number of health issues which he submits provide a good faith explanation for why the applicant did not file the Application prior to December 2014, which was one year after the alleged discriminatory events. While a Code-related explanation, including disability, may provide a good faith explanation for delay, the Tribunal would normally expect medical evidence to show not just the existence of a diagnosis, but medical information to establish that the condition prevented the applicant from filing an Application within one year of the alleged discrimination. That sort of evidence has not been provided in this case.

13Having considered the applicant's submissions, I am unable to conclude that the applicant has established a good faith explanation for the delay in filing the Application and the Application is dismissed on that basis.