Smyth v. Unifor, Local 1090, 2016 HRTO 1433

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeremy Smyth

Applicant

-and-

Unifor, Local 1090

Respondent

DECISION

Adjudicator: Douglas Sanderson Date: November 3, 2016 Citation: 2016 HRTO 1433 Indexed as: Smyth v. Unifor, Local 1090

WRITTEN SUBMISSIONS

Jeremy Smyth, Applicant Self-represented

Unifor, Local 1090, Respondent Niki Lundquist, Counsel

1This Application, filed on January 27, 2015, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability. The applicant alleges that the respondent discriminated against him because of disability when it removed him from his position of Full Time Union Committee Person.

2Sections 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.

3The parties dispute when the alleged incident of discrimination occurred, i.e., the date from which the limitation period set out in section 34 runs. The applicant submitted in the Application that the last event was January 28, 2014, the day the respondent denied his appeal of the decision to remove him from the Full Time Union Committee Person position. The applicant’s alternate submission was that he was medically incapable of filing the Application in a timely manner if the last event was the date the respondent removed him from the position, i.e., March 12, 2013.

4In its Response, the respondent denied any discrimination and submitted that the Application should be dismissed for delay because last incident of alleged discrimination was the date the applicant was removed from the position, March 12, 2013. The respondent submitted that the applicant provided no support for his assertion that his medical condition prevented him from filing the Application in a timely manner. The respondent noted that the applicant’s term as a Committeeperson ran from December 2010 to December 2013 and by the time the applicant appealed his removal on or about November 21, 2013, his term was over and elections for all position had already been held. Accordingly, his appeal was moot. This decision was communicated to the applicant in January 2014. The respondent submitted that the applicant did not particularize how the denial of his appeal amounted to discrimination.

5In his Reply the applicant submitted that he understood the limitation period ran from the “time of last contact”. The applicant reiterated that his health prevented him from filing the Application in timely manner and offered that medical documentation is available on request.

6In a Case Assessment Direction dated November 4, 2015, the Tribunal noted that disability can be a good faith explanation for delay, but also that medical evidence is required to establish that the disability was so debilitating that it prevented the applicant from pursuing his or her rights under the Code. Accordingly, the Tribunal made the following direction:

The Tribunal directs as follows:

1. Within 14 days of the date of this Case Assessment Direction, the applicant must file with the Tribunal and deliver to the respondent written submissions responding to the above-noted preliminary issue. Specifically, the applicant must address the issue of delay, good faith and prejudice within the meaning of section 34(1) and (2) of the Code, and must provide medical information to support his assertion that his disability prevented him from filing the Application within one year of his removal from his position with the respondent;

2. Within 14 days of receiving the applicant’s submission described in paragraph 9(1), above, the respondent must file with the Tribunal and deliver to the applicant written submissions responding to the applicant’s submissions and addressing the issue of delay, good faith and prejudice within the meaning of section 34(1) and (2) of the Code; and,

3. Within 14 days of receiving the respondent’s submission described in paragraph 9(2), above, the applicant may file with the Tribunal and deliver to the respondent written submissions in reply.

7The applicant did not file submissions or supporting medical documentation in the specified time, or since. Unfortunately, the Tribunal did not address the issue of delay after the deadline for submissions expired due to an oversight for which the Tribunal apologizes.

Analysis and Decision

8By arguing that the last incident of alleged discrimination was the respondent’s decision to deny his appeal, the applicant is effectively taking the position that the removal from his position and the appeal form 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?

9In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal cited Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993, 236 O.A.C. 115 (ON S.C.D.C.), which discussed the concept of a “continuing contravention” and adopted the following statement by the Manitoba Court of Appeal:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.

Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, quoted in Visic, above, at para. 45.

10In my view, the last incident of alleged discrimination in this matter was the decision to remove the applicant from his position, i.e., March 12, 2013. The decision to deny his appeal simply confirmed the decision that had already been taken. In my view, the denial of the appeal was a continuing effect of the original decision that, without more, cannot be considered a separate contravention of the Code. The Tribunal has held that an unsuccessful appeal, in itself, does not amount to a separate incident of discrimination. See Richards v. Ryerson University, 2015 HRTO 1210, and Huo v. University of Western Ontario, 2012 HRTO 198. The applicant did not provide any information that indicates that there was anything discriminatory about the denial of the appeal. Rather, the applicant simply stated that he believed the limitation period ran from the time of “last contact” with the respondent. The applicant filed the Application more than one year after March 12, 2013; therefore, I must determine whether the delay was incurred in good faith and whether the delay will cause prejudice to any party.

11The 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.

12The Tribunal has stated on a number of occasions that pursuing other avenues of redress 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 he had no reason to make inquiries about his 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.

13As noted in the Case Assessment Direction of November 4, 2015, an applicant’s disability may be a good faith explanation for delay, but there must be medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code: Pedro v. Homestead Land Holdings, 2014 HRTO 767; Dionne v. Toronto (City), 2011 HRTO 317; 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.

14The applicant did not specifically offer his appeal to the respondent as an explanation for the delay in filing the Application. In any event, the fact that he pursued the appeal with the respondent does not amount to “good faith” under the Tribunal’s jurisprudence regarding section 34(2) of the Code. The applicant submitted that his medical condition prevented him from filing the Application in a timely manner. This assertion is undercut by the fact that in November 2013 the applicant was able to make an appeal to the respondent regarding its decision to remove him from his position. Further, the applicant did not provide any medical information to support his position that his disability prevented him from filing his Application, despite being directed to do so. In these circumstances, I find that the applicant has not provided a good faith explanation for his delay in filing the Application. In the absence of good faith, it is unnecessary to address the issue of prejudice.

15The Application is dismissed for delay.