Paul v. Grand River Hospital (Specialized Mental Health Unit), 2015 HRTO 971

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edith Paul

Applicant

-and-

Grand River Hospital (Specialized Mental Health Unit), Sarah Robertson and Andrew Palmer

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: July 22, 2015

Citation: 2015 HRTO 971

Indexed as: Paul v. Grand River Hospital (Specialized Mental Health Unit)

WRITTEN SUBMISSIONS

Edith Paul, Applicant

David Lee, Representative

1This is an Application filed on March 23, 2015 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.

2In the Application, the applicant indicated that the last incident of discrimination occurred on September 25, 2013, more than one year before she filed this Application. In the Application, the applicant provided an explanation for the delay. The applicant stated that she began a medical leave on the advice of her doctor on or about March 18, 2014 because of stress and depression caused by workplace harassment. On the advice of her union, she filed an internal complaint regarding workplace harassment on April 29, 2013. The results of the investigation were revealed on September 25, 2013. The investigator found that the applicant had been harassed by one of the respondents to the complaint, but not another. The applicant alleges that the investigation was biased because it was conducted by a lawyer retained by the respondent hospital. The applicant stated that her union assured her that it would address the situation and make her whole and asked for time to do so. The applicant states that she waited for over six months for the union to resolve the matter, but received no result and little communication. The applicant states that she hired a paralegal, Mr. Lee, on August 21, 2013 to assist her. Mr. Lee contacted the union’s Area Director who agreed to become involved with a view to negotiating a settlement with her employer. According to the applicant, the Area Director informed Mr. Lee, on March 3, 2015, that the union was unable to negotiate a resolution; therefore, the applicant filed this Application.

3By letter dated June 12, 2015, the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because it appeared that the Application was filed more than one year after the last alleged incident of discrimination. The Notice also advised that the applicant did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues.

4On July 14, 2015, the applicant’s representative filed submissions providing an explanation for the delay in filing the Application. In my view, these submissions repeat the explanation provided in the Application, while providing more detail about the events leading to the filing of the Application, approximately 18 months after the last incident of alleged discrimination. The essence of the explanation was that the applicant relied on assurances from her union – both before and after retaining Mr. Lee – that it would attempt to negotiate a settlement for her.

Analysis and Decision

5Section 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.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14 and Thomas v. Toronto Transit Commission, 2009 HRTO 1582. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

8At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. However, in my view it is plain and obvious that the applicant does not have a good faith explanation for her delay in filing this Application. The applicant believed that her human rights had been violated, which was supported, to some degree, by the investigation conducted by her employer. The applicant and her representative clearly expected that her union would negotiate a settlement for her and delayed filing her Application pending realization of this expectation. However, waiting for another process to conclude does not amount to a good faith explanation for delay, as the Tribunal has stated many times. The applicant provided no explanation for failing to file her Application within the one-year time limit while her union’s efforts were ongoing. In these circumstances, I find that it is plain and obvious that the applicant does not have a good faith explanation for the delay in filing the Application.

9The Application is dismissed.