HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lynn Chmelnitsky Moors
Applicant
-and-
Ontario Teachers’ Pension Plan Board
Respondent
DECISION
Adjudicator: Douglas Sanderson
Date: October 20, 2016
Citation: 2016 HRTO 1362
Indexed as: Chmelnitsky Moors v. Ontario Teachers’ Pension Plan Board
APPEARANCES
Lynn Chmelnitsky Moors, Applicant
Self-represented
Ontario Teachers’ Pension Plan Board, Respondent
Elizabeth Brown, Counsel
1This Application, filed on August 28, 2012, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of sex.
Background
2The facts in this matter are largely not in dispute. The applicant is an elementary schoolteacher with the Peel Board of Education and is a member of the Ontario Teachers’ Pension Plan (“the Plan”). The respondent is an independent corporation that administers the Plan. From November 1998 to September 2006, and the applicant was absent from work on a series of approved leaves of absence as follows:
November 1998 to November 28, 1999: pregnancy and parental leave;
November 29, 1999 to December 27, 2000: approved leave of absence;
December 28, 2000 to December 21, 2001: pregnancy and parental leave;
December 28, 2001 to November 9, 2002: approved leave of absence;
November 10, 2002 to November 9, 2003: pregnancy and parental leave; and,
November 10, 2003 to June 30, 2006: approved leave of absence.
3The Plan is a defined benefit pension plan. The formula for calculating a member’s pension entitlement is to multiply a member’s credited service by 2% of his or her average salary for the best five years of active membership in the Plan. Generally, members are credited service for periods in which they are working or in active service. The Plan, however, provides a “buyback” option to members, such as the applicant, to purchase credited service in respect of approved leaves of absence. At the times material to this Application, members had three buyback options as follows:
The member may continue to make contributions to the Plan during the leave of absence (the applicant chose this option during her first pregnancy and parental leave);
The member may buyback credited service prior to April 30 of the year after their leave ends. This permits the contributions, referred to as a pension adjustment for income tax purposes, to be reported for the tax year in which the leave occurred; and,
The member has the opportunity to buyback credited service for five years following the end of a leave of absence, subject to restrictions described below.
4For buyback option #3, where a member wishes to buyback credited service after April 30 in the year after the year in which his or her leave ends, the member must have contribution room in his or her Registered Retirement Savings Plan (“RRSP”) matching the intended amount of the buyback. Also, a Past Service Pension Adjustment (“PSPA”) must be issued for buybacks occurring after April 30 of the year following the year in which the leave ended. The Canada Revenue Agency (“CRA”) must “certify” all PSPAs. To certify a PSPA, the CRA checks to ensure the member has sufficient RRSP contribution room. If the PSPA amount (i.e., the buyback amount) does not exceed the member’s RRSP room by more than $8,000, the CRA will certify a PSPA. Where the PSPA amount is more than $8,000 above the member’s RRSP contribution room, the CRA will not certify. In these circumstances, the member must either withdraw sufficient funds/property from his or her RRSP to come within the certification threshold or give up the purchase of credited service.
5In August 2010, the applicant contacted the respondent and indicated that she wished to exercise the third buyback option. On September 20, 2010, the applicant made a lump sum payment for the full amount of her buyback out of non-RRSP funds. The respondent applied to the CRA for certification of the PSPA issued for the applicant. The CRA did not certify the applicant’s PSPA because she did not have sufficient room in her RRSP. In a telephone conversation on February 1, 2011, the respondent informed the applicant of this outcome and advised her that she had to make a withdrawal from her RRSP for the CRA to certify the PSPA. By letter dated February 4, 2011, the respondent confirmed that the applicant did not have enough contribution room to buyback all of the credited service in respect of her leaves of absence. The respondent advised that she may be able to buyback a lesser amount of credited service based on the RRSP room she had available.
6On February 12, 2011, the applicant executed a Proportionate Credit Option form, in order to make use of her RRSP contribution room to purchase credited service. The respondent received the form on February 17, 2011, along with several related forms. One of these documents was a letter from the CRA, dated February 3, 2011, that advised of the applicant that she would have to withdraw $45,960 from her RRSP in order for the CRA to be able to certify the PSPA the respondent filed on her behalf (i.e., in order to buyback credited service for the full period of her leaves). The applicant stated in her cover letter to the respondent that her goal was “to buyback as much of her pension as possible”.
7In her Application, the applicant stated that at this point she believed that she would be able to buyback credited service for the entire period of her leaves. The applicant stated that she received conflicting information on this point in discussions with the respondent’s personnel. There is no dispute that the applicant, with the assistance of her union, the Elementary Teachers Federation of Ontario, worked with the respondent’s personnel over the next several months to finalize her buyback options.
8At the end of April 2011, the applicant transferred the entire value of her RRSP, $23,767.78, to the respondent, who received it on May 4, 2011. By letter dated July 11, 2011, the respondent presented the applicant with two options. The first option confirmed that the maximum buyback available to the applicant in the circumstances was for the period of September 1, 1999 to September 4, 2003. To pursue this option the applicant was required to make a qualifying withdrawal of $3,576. The second option would have provided a lesser buyback and is not relevant to this Decision. Also on July 11, 2011, the respondent refunded the lump sum the applicant paid in 2010, plus interest. In a letter dated July 27, 2011 the respondent answered several questions the applicant had regarding her buyback options and confirmed the buyback available to her.
9The applicant made a qualifying withdrawal required to pursue the first option (i.e., the buyback in respect of the period of September 1, 1999 to September 4, 2003) on July 21, 2011, and sent the confirming documentation to the respondent by facsimile on July 25, 2011. The applicant resent the documentation at the respondent’s request on or about January 24, 2012. The respondent submitted the applicant’s PSPA to the CRA on or about January 24, 2012 and it was approved on same day. The result was communicated to the applicant. The applicant states that this is the first time she realized that she would not be able to buyback credited service for the entire period of her leaves of absence. The applicant stated that prior to her leaves her projected retirement date was November 30, 2024. The applicant states that following the partial buyback of credited service her retirement date is May 1, 2026, and that her pension entitlement will be reduced.
10The applicant contends that the respondent’s requirement in place prior to September 2010, that buybacks be made in a single lump sum payment, instead of simply expressing an intent to buyback service (an option under the Income Tax Act, but not under the Plan rules at the time) has a discriminatory effect on women returning from pregnancy and parental leaves, as does the practice of basing buybacks solely on RRSP contribution room. The respondent denies that its practices were discriminatory, as all leaves were treated in the same manner.
The hearing
11By Case Assessment Direction dated July 20, 2015, the Tribunal set this matter down for a preliminary hearing to determine whether the Application should be dismissed, in whole or part, because:
a. it appears that some or all of the allegations may be untimely;
b. the re-activation may be untimely;
c. another proceeding has appropriately dealt with the substance of the Application; and/or
d. there is no reasonable prospect that the Application or part of the Application will succeed.
The Tribunal held a hearing in person on November 13, 2015.
Reactivation
12The applicant filed a complaint to the Canadian Human Rights Commission (“the Commission”) regarding the provisions of the Income Tax Act related to the applicant’s pension buyback. On April 15, 2014, the Commission decided to dismiss the complaint and the applicant applied to the Federal Court for judicial review of the decision. The Court dismissed to the judicial review application in a decision dated April 10, 2015.
13Following a mediation session in this matter on July 4, 2013, both of the parties have treated this Application as if it were deferred pending the outcome of the applicant’s complaint to the Commission and the subsequent judicial review. As noted in the Case Assessment Direction of July 20, 2015, however, the Tribunal never formally deferred to the Application. In these circumstances, I find that it would not be appropriate to dispose of the Application because the reactivation request was untimely, particularly since I have found that the Application must be dismissed for delay in any event.
DeLay
The Applicant’s Submissions
14The applicant submitted that the incidents described in her Application amount to a series of incidents pursuant to section 34(1)(b) of the Code and are therefore timely. The applicant submitted that the respondent’s position on delay rests on the conversation between her and one of the respondent’s representatives on February 1, 2011 because it was in this conversation that the applicant learned that she would not be able to buyback all the credited service for her leaves of absence. The applicant agrees that she was told this, but points out that the respondent’s representative made statements to the effect that a complete buyback may be possible. The applicant also pointed to the ongoing conversations she had with the respondent between February and June 2011 that indicate that the respondent was unable to provide her with a definitive answer about her buyback. The applicant submitted that, as a result, she was not certain that she would not be able to buyback all of the credited service for her leaves of absence until January 24, 2012, when the respondent informed her that her reduced buyback had been approved. The applicant submitted that she assumed that the respondent continued to work with the CRA to achieve a full buyback after July 21, 2011. The applicant submitted that the discriminatory effect of the respondent’s actions had not been realized until her buyback was approved. Only at this point was there a decision clarifying that there would be no resolution through means approved by the respondent. The applicant submitted that this incident occurred within one year of the Application filing date of August 28, 2012.
15In the alternative, the applicant submitted that any delay was incurred in good faith. The applicant submitted that any delay is attributable to the respondent’s representatives. As noted above, the applicant submitted that the respondent’s representatives led her to believe that she would be able to achieve a complete buyback at some point.
16The applicant submitted that the Tribunal should follow the decision in Grange v. Toronto (City), 2014 HRTO 633, which found that the language of sections 34(1) of the Code indicates that applications are presumptively in time. The decision in Grange also indicates that there is “no compelling reason” to engage in a detailed assessment of whether the incidents in question are in fact part of a series, particularly in cases alleging systemic discrimination.
The Respondent’s Submissions
17The respondent submitted that the entire Application is untimely and should be dismissed. The respondent submitted that the limitation period set out in section 34(1) of the Code is mandatory, subject only to the good faith requirement in section 34(2).
18The respondent’s submission was indeed the last incident of alleged discrimination was on February 1, 2011. As of February 1, 2011, the respondent informed the applicant that the CRA denied the PSPA covering her entire period of leaves. Accordingly, her proposed buyback was ineligible and a qualifying withdrawal was necessary. At this point, it was evident that the applicant would not be able to make a full buyback. The respondent submitted that nothing changed from that point. The respondent acknowledged there was confusion in determining the amount the applicant could buyback, but it was clear that complete buyback was not possible.
19The respondent pointed to the applicant’s complaint to the Commission dated September 2, 2011. The respondent noted that the applicant made the same complaint as in this Application, i.e., that she had been prevented from making a full buyback of credited service in respect of her leaves of absence. The respondent submitted that the basis of the complaint to the Commission was the CRA’s denial of her buyback because she did not have enough employment credit or RRSP room and a qualifying withdrawal from her RRSP was required. Accordingly, the complaint indicates that the applicant was well aware that she would not get a full buyback and was required to withdraw RRSP funds for partial buyback. The respondent conceded that the transcription of the conversations between the applicant and respondent showed confusion about what the buyback would be. It was clear, however, that the applicant would have to withdraw RRSP funds and that the buyback would be partial.
20In the alternative, the respondent submitted that there were other points in which it was clear that the applicant would not achieve the full buyback and acted accordingly. On May 4, 2011, the respondent received funds from the applicant’s RRSP as a qualifying withdrawal for a partial buyback. On July 21, 2011, the applicant made a qualifying withdrawal from her RRSP in order to make a partial buyback. At that point, the applicant had completed all the steps necessary for a partial buyback and it was clear what the buyback would be. The respondent submitted that nothing happened between July 21, 2011 and January 2012 when the CRA approved the buyback.
Analysis and decision
21Sections 34(1) and 34(2) of the Code provide as follows:
(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.
22In Vrabie v. Peel Police Services Board, 2016 HRTO 488 at paras. 41-44, I disagreed with the reasoning in Grange and concluded that nothing in the statutory wording of section 34(1) creates a presumption that an application is in time. I also found, consistent with the Tribunal’s jurisprudence, that the limitation periods set out in sections 34(1)(a) and 34(1)(b) are mandatory or jurisdictional provisions, i.e., provisions that determines what the Tribunal has, or does not have, the power to decide. In my view, ensuring the Tribunal deals only with applications within its jurisdiction is a compelling reason to address the issue of delay as soon as possible in a proceeding. Consequently, I find that it is appropriate to address the issue of delay as a preliminary matter in this proceeding.
23The applicant argued that her allegations amounted to a series of incidents pursuant to section 34(1)(b) of the Code. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
24A series requires that at least one of the alleged incidents occurred within one year of the Application filing date, in this case August 28, 2012. The applicant’s position was that it was only when the CRA approved her buyback request that she realized that she would not receive the full buyback regarding her leaves of absence. With respect, this assertion is not supported by the facts. The applicant acknowledged that she was informed that the CRA denied her PSPA in February 2011 and that she was advised that she could receive a lesser buyback by making a qualifying withdrawal.
25The applicant stated that in February 2011 the respondent held out the possibility that a full buyback was possible. Even accepting that to be true, the applicant was aware that she would not receive a full buyback not later than July 21, 2011. On April 30, 2011, the applicant withdrew $23,767.78 from her RRSP. This amount was significantly less than the amount needed to make a full buyback. In my view, this was a clear indication that the applicant could not obtain a full buyback of credited service for her leaves of absence. In any event, the respondent removed all doubt on the issue in its letter to the applicant of July 11, 2011. In that letter the respondent confirmed that the maximum buyback the applicant would receive was in respect of the period of September 1, 1999 to September 4, 2003. Also on July 11, 2011, the respondent returned the payment she made (out of non-RRSP funds) in September 2010. The applicant accepted this partial buyback, which is demonstrated by the fact that she made the necessary qualifying withdrawal on July 21, 2011. The applicant also filed a human rights complaint with the Commission in September 2011 because she could not obtain the full buyback of credited service. In my view, this complaint indicates that the applicant knew she could not achieve the full buyback of credited service and that she considered it to be a violation of her human rights.
26I do not accept the applicant’s assertion that she believed the respondent continued to work with the CRA after July 21, 2011 to obtain a full buyback for her. There is simply no basis for this assertion, which is contrary to all the information before me. In particular, the applicant pointed to no document or conversation with the respondent after the respondent’s letter on July 11, 2011 or her qualifying withdrawal on July 21, 2011 indicating a full buyback may be possible or that the respondent would continue to work with the CRA to improve the outcome. The certification of the applicant’s PSPA in January 2012 simply confirmed what the applicant already knew. In any event, the CRA certified the applicant’s PSPA; therefore, this event cannot amount to discrimination by the respondent. The respondent submitted the PSPA request in January 2012. In my view, submitting the request was an administrative step that cannot be seen as a fresh step or incident of discrimination as it had no bearing on the outcome for the applicant.
27In my view, the final alleged act of discrimination was July 11, 2011, when the respondent finally confirmed to the applicant that a full buyback was not possible. July 11, 2011 is more than one year before the Application filing date of August 28, 2012. Consequently, the Application does not come within the limitation period under either section 34(1)(a) or section 34(1)(b). Accordingly, I must determine if the delay was incurred in good faith and whether any party shall incurred substantial prejudice as a result of the delay.
28The Tribunal’s approach to delay and the issue of what amounts to “good faith” for the purposes of section 34(2) 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.
29The applicant made two submissions regarding good faith. First, the applicant submitted that she delayed filing the Application because the respondent held out the possibility of a full buyback after February 1, 2011, and because of the delays incurred in determining what her buyback would be. Second, the applicant submitted that she assumed that the respondent continued to work with the CRA regarding her buyback between July 2011 and January 2012. As set above, the respondent confirmed the applicant’s buyback entitlement in a letter dated July 11, 2011. The confusion regarding the applicant’s buyback, including any representations that a full buyback may be possible, occurred before this date and therefore does not explain why the applicant delayed in filing the Application after it became clear that a full buyback was not possible. As noted above, I do not accept the applicant’s explanation that she assumed the respondent continued to work on her buyback with the CRA between July 2011 and January 2012. Again, there is simply no basis for this assumption and there is no indication that the respondent took any action regarding her pension issues in that period. In these circumstances, I find that the applicant has not provided a good faith explanation for the delay in filing the Application. In the absence of a good faith explanation, it is unnecessary to address the issue of prejudice.
30The Application is dismissed for delay. Accordingly, it is unnecessary to address the application of section 45.1 of the Code or whether the Application has no reasonable prospect of success.
Dated at Toronto, this 20^th^ day of October, 2016.
“Signed by”
Douglas Sanderson
Vice-chair