Matt Yardley v. McMaster University, 2016 HRTO 490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matt Yardley

Applicant

-and-

McMaster University

Respondent

INTERIM DECISION

Adjudicator: Bruce Best

Date: April 15, 2016

Citation: 2016 HRTO 490

Indexed as: Yardley v. McMaster University

WRITTEN SUBMISSIONS

Matt Yardley, Applicant

Wade Poziomka, Counsel

McMaster University, Respondent

Jeremy Hann, Counsel

Introduction

1This is an Application alleging discrimination in employment on the basis of age and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c H.19, as amended (the “Code”).

2On April 21, 2014, the applicant was called to a meeting and given over two-years working notice of the termination of his employment, effective April 30, 2016. He alleges that his employment was terminated because of his age, noting that he had earlier been pressured to take early retirement. He further claims that during his period of working notice, he was denied and/or delayed in training on a new database system in 2014 and 2015 (though this training was provided to new and younger employees), that he was required to train younger employees who he believes were hired to replace him, that he was subject to reprisal for alleging his termination was age discrimination, and that the employer was poisoning the workplace against him.

3This decision addresses the respondent’s request to dismiss the allegations relating to the termination of the applicant’s employment and being pressured to take early retirement on the basis that they are out of time.

Respondent’s Arguments

4The respondent takes the position that the limitation period for challenging the termination of employment began to run on April 21, 2014 when the applicant was given notice. As the Application was not filed until June 24, 2015, the respondent argues it was therefore started outside the one-year limitation period under s.34(1)(a). The respondent makes similar arguments with respect to the allegation that the applicant was pressured to take early retirement, which relates to a letter sent to the applicant in March 2012.

5The respondent does not dispute that the remaining allegations are timely, though it denies that any of them could amount to a breach of the Code. At para 55 of the Response, the respondent does acknowledge that employees who have received a written notice of termination are less likely to be approved for special training opportunities.

Applicant’s Arguments

6The applicant argues that he was unaware that his termination may have been due to age until July 2014, and that based on the discoverability doctrine his Application filed in June 2015 was therefore timely. He also argues that the timely allegations respecting denial of training are further incidents relating to his termination due to age. He further argues, in the alternative, that the limitation period does not begin to run until the effective date of the termination, April 30, 2016, and, as such, the allegations are timely. With respect to the allegation that he was pressured to take early retirement, the applicant indicates that he is not seeking a remedy for that incident, but that it was included in the Application as background to provide context to the remaining allegations.

analysis and Decision

Are the allegations respecting termination of employment timely?

7Section 34(1) of the Code reads 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.

8The question raised in this Application is whether the one-year limitation period under s.34(1) begins when an employee is given a notice of termination, or when that notice becomes effective. In my view, it is the latter.

9The Tribunal has recognized in several cases that the limitation period starts when an allegedly discriminatory change actually takes effect, not when an applicant is given notice of the change. In Leve v. Grant Thornton LLP, 2015 HRTO 536 (“Leve”), at paras 15-17, the Tribunal held that the limitation period for challenging an allegedly discriminatory mandatory retirement provision was the date the forced retirement took effect, not the date the employee became aware of the provision. In Boyer v. Sears Canada, 2009 HRTO 1084 (“Boyer”) at para 21, the Tribunal held that the limitation period for challenging a change to the employee benefits plan was the date the change took effect, not the date the employees were advised of the change. Dahir v. Corvin Building Maintenance Ltd., 2014 HRTO 1149 (“Dahir”), like the present case, was a case of working notice, where at para 4, the Tribunal held that the limitation period began on the date the termination actually took effect, not the date the employee was given the notice of termination.

10To hold otherwise, particularly in a long notice period such as the present case, could result in a situation where a limitation period would have expired before the incident with the most significant impact (or, in some cases, such as Leve, the only impact) had occurred.

11In the present case, the effective date of the notice is not until April 30, 2016. The applicant is still in his working notice period. If the applicant had waited until after April 30, 2016 to file his Application it would be timely. The Application relating to the termination of his employment is, therefore, not out of time, as his termination has not yet taken effect.

12This, however, raises the issue of whether the allegation is premature. However, as there are other timely allegations, the Application will be continuing in any case, and the April 30, 2016 termination date will pass shortly. The impact, if any, of prematurity is an issue best addressed by the adjudicator hearing the Application on the merits.

Request to Strike Allegations

March 28, 2012 Early Retirement Offer

13In his Reply, the applicant states that he is not asking the Tribunal to find a Code violation with respect to the March 28, 2012 early retirement offer, and that this incident is raised only in order to put the later allegations in context. He also argues that in cases that may involve circumstantial evidence a party must be permitted to plead and rely on facts outside the one-year limitation period.

14The Tribunal has held that, though they may not result in a finding of liability or a remedy under the Code, untimely allegations may, if relevant, be raised for the purpose of putting timely allegations in context. See Franceschina v. Essar Steel Algoma Inc., 2012 HRTO 1634 (“Franceschina”), at paras 6-7, and Sandhu v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1394 (“Sandhu”), at para 8.

15I agree with the analysis in Franceschina and Sandhu and decline to strike the references to the March 2012 early retirement offer in the Application at this time. I make no decision on the admissibility, relevance or weight of the evidence relating to the March 2012 early retirement offer; this is an issue that should be left to be determined by the hearing adjudicator.

April 21, 2014 Termination Meeting

16My finding that the limitation period with respect to the termination of employment does not begin to run until the effective date of the notice does not mean that allegations respecting the actual events of April 21, 2014 are also timely. In addition to being given notice, the Application also raises allegations about the manner in which the termination meeting was handled which could, if found to be discriminatory, also give rise to a claim for damages; for example, he notes that after the meeting he was escorted from the building by a security guard, despite the fact that he would be returning to the same building the next day to work for the next two years.

17The applicant raised several arguments that the events of April 21, 2014 were timely; first, he argues that he was unaware that the decision to terminate may have been discriminatory until July 2014, so that his Application filed in June 2015 is therefore timely. To determine whether the doctrine of discoverability should apply will require the hearing of evidence. This argument is, as such, best left to the adjudicator hearing the Application on the merits.

18Second, the applicant suggests that the giving of the notice and the enforcement of the notice may be two incidents in a series for the purposes of Code s. 34(1)(b), citing Dahir, where the Tribunal held that the enforcement of the notice and the events leading up to it, including the giving of notice, were a series of incidents.

19In Dahir, however, the time between the notice and enforcement was one week, whereas in the present case it is over two years. The Tribunal has held that a gap of more than one year between incidents will in most cases be sufficient to interrupt the series. See Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para 9 and Thambipillai v. Toronto District School Board, 2011 HRTO 487 at paras 17-20. The Tribunal has, however, also held that those decisions should not be seen to import a rigid “less than one year” rule when determining whether two incidents constitute a series, particularly where there is a nexus between the events. See Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927 at para 11, and Umac v. Custom Black Inc., 2015 HRTO 1299 at para 68.

20As with the question of discoverability, to determine whether the giving of notice and enforcement of a notice two years apart are two incidents within a series for the purposes of s.34(1)(b) may require the hearing of evidence. The question of whether the events of April 21, 2014 are timely is, as such, an issue which is best left to the adjudicator hearing the Application on the merits.

21For the same reasons set out above with respect to the 2012 early retirement offer, if the April 21, 2014 termination meeting is found to be untimely, the admissibility, relevance or weight of the evidence relating to the April 2014 termination meeting to put the timely allegations in context is again issue that should be left to be determined by the hearing adjudicator.

Decision

22I order as follows:

a. The Application with respect to the termination of the applicant’s employment is not out of time.

b. Whether or not the allegations of discrimination respecting the events of April 21, 2014 are timely will be left to the adjudicator hearing the matter.

c. If found not to be timely, whether evidence respecting the events of April 21, 2014 are admissible, and the weight they should be given, shall be determined by the adjudicator hearing the matter.

d. Whether evidence respecting the early retirement offer of March 2012 is admissible, and the weight it should be given, shall be determined by the adjudicator hearing the matter.

23I am not seized.