Scott v. Casino Windsor Ltd., 2015 HRTO 93

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deleana Scott

Applicant

-and-

Casino Windsor Ltd. o/a Caesars Windsor

Respondent

DECISION

Adjudicator: Paul Aterman

Date: January 22, 2015

Citation: 2015 HRTO 93

Indexed as: Scott v. Casino Windsor Ltd.

WRITTEN SUBMISSIONS

Deleana Scott, Applicant

Christine Lundy, Counsel

Casino Windsor Ltd., Respondent

Stephen Roberts, Counsel

1This Decision explains why the Tribunal is dismissing this Application for delay. The 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”).

2The applicant worked for the respondent as a banquet steward from 1998 until her termination from employment on March 28, 2013. She experienced a number of workplace injuries in the course of her employment. The applicant has been granted benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 (“the Act”). The injuries caused her to be absent from work for a significant period of time. The applicant alleges that she could have gone back to work had the respondent accommodated her disabilities. She maintains that the failure of the respondent to accommodate her disabilities and the resulting termination of her employment were both discriminatory.

3Discrimination is denied by the respondent and it requests that the Application be dismissed on grounds of delay. The Application was filed on October 9, 2014, more than a year after the last alleged incident of discrimination, which was the applicant’s termination on March 28, 2013.

4The applicant does not dispute that the Application was filed late, but requests that the Tribunal allow her Application to continue because the delay was due to circumstances beyond her control. Specifically, she states that her psychological disabilities impaired her ability to take decisions and act in the period following the end of her employment.

5In support of her submission that the delay in filing her Application was incurred in good faith, she has provided a letter from her therapist and from a chronic pain specialist. The therapist’s letter states that depression resulting from her physical injuries impairs her ability to complete tasks on time, despite being motivated to do so. The letter from the chronic pain specialist states that the applicant’s chronic pain has an impact on her psychological state that “…is not out of keeping with the patient missing various important deadlines due to the nature of her illness”.

6The respondent’s position is that there are facts in the relevant time period that contradict the applicant’s assertion that she was unable to take the necessary steps to file her Application in time. These include the applicant having sought legal advice from the Human Rights Legal Support Centre in relation to her Application, and having pursued remedies through the workers’ compensation system in this period (including seeking legal advice from various different sources). Further, according to the respondent, the letters from the applicant’s doctors do not show that the applicant was so debilitated that she could not pursue her legal rights.

analysis

7Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are 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.

8If I assume that the last incident of alleged discrimination was the applicant’s termination on March 28, 2013, then the one-year time limit for filing expired on March 27, 2014. In this case the application was filed over six months later, on October 9, 2013.

9The issues to be determined here are whether the applicant’s explanation for the delay in filing meets the test of a delay incurred in good faith and whether any substantial prejudice will result to any person affected by the delay.

10In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25 the Tribunal discussed the good faith requirement as follows:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

11In Dionne v. Toronto (City), 2011 HRTO 317 at para. 9, the Tribunal applied these general principles to a situation where the applicant attributed the delay in filing to a disability and stated:

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12In this case the applicant has not presented medical evidence which meets the test set out in Dionne. The doctor’s letters provided by the applicant in support of her argument are both brief and while they both state that the applicant’s conditions would make it difficult for her to file an application on time, neither states that she was so impaired that she could not do so at all.

13The lack of specificity in the doctor’s letters is to be contrasted with statements which come from the applicant herself about what she was doing in this period. In my view the applicant’s ability to pursue workers’ compensation remedies and her ability to seek out legal advice from various sources in relation to her Application and her workers’ compensation files are not indicative of a person who was so disabled that she could not file an Application. Neither doctor’s letter speaks to the fact that the applicant was able to take these steps in the same time frame as she maintains she was unable to file her Application.

14In relation to her workers’ compensation issues, the applicant claims that she was not actually making the submissions to the Workplace Safety and Insurance Board herself, she was getting representatives to do so on her behalf. I do not find this a persuasive argument to justify her delay because the applicant could have done the same in relation to filing this Application. She did not have to file it herself and could have obtained assistance in filing it.

15I conclude from the above circumstances that it was more likely than not that the applicant could have filed her Application on time. It follows from this that the delay in filing was not incurred in good faith.

16Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (see: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

order

17The Application is dismissed.