HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Bruno

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by Treasury Board Secretariat and Rod Dewell

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: February 22, 2016

Citation: 2016 HRTO 229

Indexed as: Bruno v. Ontario (Treasury Board Secretariat)

APPEARANCES

Anthony Bruno, Applicant

Rita Bruno, Representative

Her Majesty the Queen in Right of Ontario as represented by Treasury Board Secretariat and Rod Dewell, Respondents

Heather McIvor, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis on the basis of jurisdiction because it is untimely.

2The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”):

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.

BACKGROUND

3The applicant is employed as a Senior Analyst with the Treasury Board Secretariat (the “organization respondent”). Rod Dewell (the “individual respondent”) is his Manager.

4The applicant was off work on a medical leave between October 28, 2010 and January 4, 2011. On March 28, 2011, the applicant met with Mr. Dewell to discuss his annual performance appraisal.

5The applicant was off work on a further medical leave between May 27 and September 16, 2011. During the applicant’s absence, Mr. Dewell finalized his performance appraisal, and the applicant received it on September 19, 2011. The applicant received a “conditional achievement” rating, which resulted in him not receiving performance pay.

6On February 10, 2015, the applicant filed an Application under s. 34 of the Code, which alleged that the respondents discriminated against him with respect to employment because of his disability, and subjected him to reprisal for having claimed his rights under the Code. Specifically, he alleged that following his return from his first medical leave, Mr. Dewell increased his workload, shortened his time line to meet deadlines, put errors in his draft work, denied his request to attend trainings and conferences, and took away key responsibilities from him. He further alleged that following his return from his second medical leave, he received, for the first time, a negative annual performance appraisal from Mr. Dewell. The applicant’s theory of discrimination and reprisal appears to be that Mr. Dewell did not believe that he was actually ill and unable to work, and proceeded to bully him, undermine his work performance, and give him a negative performance appraisal as punishment for having taken medical leaves of absence.

7In section 7(c) of the Application (“What was the date of the last event?”), the applicant answered: October 30, 2014. In section 7(d) (“If you are applying more than one year from the last event, please explain why :”), he answered that the negative performance appraisal that he received in 2011 has negatively “impacted” his overall salary to the present time.

8On April 1, 2015, the respondents filed a Response, which denied the allegations of discrimination and reprisal, and requested that the Application be dismissed on a preliminary basis on the basis of jurisdiction because it is untimely. The respondents also filed a Request for an Order During Proceedings, which requested that Mr. Dewell be removed as a respondent to the Application.

9On April 14, 2015, the applicant filed a Response to the respondents’ requests to dismiss his Application on a preliminary basis and remove Mr. Dewell as a respondent to the Application, which opposed both requests.

10On October 6, 2015, the Tribunal issued a Case Assessment Direction, which directly the parties to attend a preliminary hearing to address the preliminary issues raised by the respondents. The parties filed written submissions, documents, and case law in advance of the hearing. The hearing took place on January 29, 2016. I heard the parties’ oral submissions and reserved my Decision.

ANALYSIS

11The first issue to determine is when the last alleged incident of discrimination and reprisal occurred.

12In his submissions, the applicant stated that the alleged incidents of discrimination and reprisal are ongoing because the negative performance appraisal that he received in 2011, which resulted in him not receiving performance pay, continues to have a negative impact on his pay.

13I disagree with the applicant’s submission that the alleged incidents of discrimination and reprisal are ongoing. My understanding of the applicant’s submission is that he continues to receive less pay because of the negative performance appraisal that he received in 2011. In my view, what the applicant is describing is the continuing effects of an alleged incident of discrimination and reprisal (the negative performance appraisal in 2011, which resulted in him not receiving performance pay) rather than fresh alleged incidents of discrimination and reprisal. See Dewling v. Toronto Police Services Board, 2014 HRTO 1617 at para. 23; Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”) at paras. 32-42; and Mafinezam v. University of Toronto, 2010 HRTO 1495 at paras. 13-17.

14The distinction between a single alleged incident of discrimination and reprisal with continuing effects and a succession of separate alleged incidents of discrimination and reprisal can be subtle, but, in my view, what the applicant is describing is the former rather than the latter, and is different than the facts in a case such as Garrie, above, which involved ongoing wage differential between the applicant who had a developmental disability and labourers who did not have a developmental disability.

15In Garrie, there was an ongoing, repetitive process whereby the applicant and other labourers worked for a period of time and then received pay cheques which had different amounts based on whether or not they had a developmental disability. As the Tribunal explained at para. 43, the alleged incidents of discrimination involved “fresh and ongoing step[s] of exchanging labour for pay.” By contrast, in the case at hand, there was one negative performance appraisal in 2011, which had the effect of reducing the applicant’s pay in subsequent pay periods. This is not a situation where there was an ongoing, repetitive process whereby the applicant received periodic negative performance appraisals followed by a lower pay cheque. In fact, the parties agree that the applicant has received subsequent performance appraisals, which have been satisfactory, and have not negatively affected his pay.

16Therefore, I find that the last alleged incident of discrimination and reprisal occurred in 2011 when the applicant received a negative performance appraisal and did not receive performance pay. Given the Application was not filed until February 10, 2015, I find that the Application was filed well outside the one-year time limit in s. 34(1) of the Code.

17The second issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

18In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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.

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

19In Lafleur v. Kimberley Scott, 2009 HRTO 1141 (”Lafleur”), the Tribunal also stated at para. 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), [1990 CanLII 12268 (ON HCJ)](https://www.minicounsel.ca/scj/1990/12268), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) [2002 CanLII 44920 (ON CA)](https://www.minicounsel.ca/oca/2002/44920), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, [2006 CanLII 22941 (ON SC)](https://www.minicounsel.ca/scj/2006/22941), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, [1994 CanLII 7454 (ON CTGD)](https://www.minicounsel.ca/scj/1994/7454), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

20In his submissions, the applicant stated that any delay in filing his Application was incurred in good faith for four reasons. First, he made numerous attempts to have the matter dealt with internally through the organization respondent’s chain of command, which was a time consuming process. Second, he had numerous health issues, including sleep problems, digestive problems, pain, depression, and anxiety, and felt overwhelmed, which resulted in an inability to file his Application. Third, neither he nor his spouse, who ultimately initiated the filing of his Application, has a legal background. And fourth, given that he continued to be employed by the respondents, commencing legal proceedings against them was not was not an option for him because of a fear of reprisal.

21For the following reasons, I find that the applicant has not established that his delay in filing his Application was incurred in good faith.

22First, I do not accept that the applicant’s delay in filing his Application was incurred in good faith because he was making numerous attempts to have the matter dealt with internally through the organization respondent’s chain of command. The Tribunal has consistently held that waiting for an internal complaints process or other legal proceedings to conclude does not in itself establish that a delay was incurred in good faith, particularly where the applicant could have filed a timely Application while continuing to pursue an internal complaint or another legal claim. See Verreault v. Ontario (Community and Social Services), 2015 HRTO 836 at paras. 10-11, and Cartier, above, at para. 23.

23Second, I do not accept that the applicant’s delay in filing his Application was incurred in good faith because he had health issues and felt overwhelmed. Although the Tribunal accepts that a delay may be incurred in good faith because of an applicant’s disability, it has consistently ruled that it requires evidence that a disability was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317 at para. 9, and James v. York University, 2013 HRTO 633, reconsideration denied, 2014 HRTO 380, upheld by the Divisional Court, 2015 ONSC 2234. The applicant simply made a bald assertion. There is no evidence – medical or otherwise – that his health issues rendered him incapable of filing the Application within the one-year time limit in s. 34(1) of the Code. Furthermore, during the time period in question, the applicant was attending work, and making numerous attempts to have the matter dealt with internally through the organization respondent’s chain of command. This contradicts his submission that he was so disabled by his health issues that he was unable to file his Application.

24Third, I do not accept that the applicant’s delay in filing his Application was incurred in good faith because neither he nor his spouse has a legal background. He is a well-educated and sophisticated person, who holds a senior position in the civil service, and, as evidenced by his numerous attempts to have the matter dealt with internally through the organization respondent’s chain of command, was cognizant of his right not to be treated unfairly because he had taken medical leaves of absence. Even if he was not specifically aware that he could file an Application with this Tribunal, he has not established that he had no reason to make enquiries about his right to do so. See Lafleur, above.

25Fourth, I do not accept that the applicant’s delay in filing his Application was incurred in good faith because he continued to be employed by the respondents, and could not commence legal proceedings against them because of a fear of reprisal. The fact that he made numerous attempts to have the matter dealt with internally through the organization respondent’s chain of command, and ultimately did his file his Application while continuing to be employed by the respondents, contradicts this submission. I am not suggesting that the applicant had no fear of reprisal, but he has not established that it was at the level where he was unable to file his Application with this Tribunal.

26In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. The Application is dismissed.

27In view of the fact that the Application is being dismissed on a preliminary basis, it is not necessary to decide whether Mr. Dewell should be removed as a respondent to the Application.

ORDER

28The Application is dismissed.