Villeneuve v. Sudbury (City) – Pioneer Manor, 2016 HRTO 803

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Villeneuve

Applicant

-and-

The City of Greater Sudbury – Pioneer Manor

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: June 14, 2016

Citation: 2016 HRTO 803

Indexed as: Villeneuve v. Sudbury (City) – Pioneer Manor

APPEARANCES

Linda Villeneuve, Applicant

Cheryl MacKinnon, Representative

The City of Greater Sudbury – Pioneer Manor, Respondent

Mireille Khoraych, Counsel

BACKGROUND

1This Application was filed by the applicant on July 20, 2015. It alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that her 2009 workplace injury was connected to or influenced the events that resulted in the termination of her employment on December 29, 2011.

2By Registrar’s letter dated November 26, 2015, the parties were advised that a preliminary hearing would be scheduled to determine whether the Application should be dismissed for delay. The preliminary hearing was originally scheduled for March 4, 2016. It was subsequently rescheduled to June 10, 2016.

3The preliminary hearing was conducted by teleconference on June 10, 2016.

the facts

4The applicant’s employment was terminated by the respondent on December 29, 2011. On January 3, 2012, the applicant’s union filed a grievance relating to the termination of employment.

5On April 18, 2012, the applicant’s union withdrew the grievance. On May 6, 2012, the applicant’s union advised the applicant that it was not pursuing her termination to arbitration and that the union was no longer representing her in that matter.

6On May 9, 2012, the applicant filed a claim under the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”) for termination and severance pay. By decision dated August 1, 2012, the claim was dismissed on the basis that a unionized employee cannot file an ESA claim.

7On May 30, 2012, the applicant filed a Duty of Fair Representation (“DFR”) complaint with the Ontario Labour Relations Board (the “OLRB”). The applicant had the assistance of legal counsel in preparing that complaint.

8On June 21, 2012, the OLRB released an interim decision. In that decision, it noted the following:

The applicant in her first application claims she lost her job due to unfair representation. She claims she had a clean record and had been employed for seven years, and that “this all started after being hurt in 2011”. (emphasis added)

9The DFR complaint was dismissed by decision dated July 12, 2012.

10On October 1, 2013, the applicant filed a wrongful dismissal action in small claims court. That action was dismissed as abandoned. On July 10, 2014, the applicant’s representative confirmed with the respondent that the small claims court action had been dismissed.

11On July 20, 2015, the applicant filed this Application with the Tribunal.

ANALYSIS

Delay

12Section 34 of the Code provides that an application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events.

13In the Application, the applicant states the date of the last event was December 5, 2012. It is unclear to me what this date refers to. Even accepting that there was an incident of discrimination on this date, the Application is out of time.

14In her submissions on the preliminary hearing, the applicant argued the one-year limitation period commenced when the small claims court action was dismissed in March 2015. I disagree. Under section 34(1) of the Code, the limitation period commences after the incident of discrimination occurred. In this case, the incident of discrimination was the termination of the applicant’s employment on December 29, 2011.

15This Application was filed on July 20, 2015, three and one-half years after the date of termination. As such, the Application is outside of the one-year time limit under section 34(1) by two and one-half years.

16Under section 34(2) of the Code, the Tribunal can accept an application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the application. To show that a delay was incurred in good faith, an applicant must provide a reasonable explanation for her failure to pursue their rights under the Code in a timely manner.

17The applicant provided the following explanation for her delay in the Application:

The Applicant is applying a significant time after this event as attempts to resolve this matter were made in the Ontario Small Claims Court, and the Ontario Labour Board, the Applicant has been advised that this avenue would be the most effective for the circumstances.

18During the preliminary hearing, the applicant’s representative confirmed the delay occurred because the applicant was pursuing other avenues of redress. She provided the following explanation for the delay:

The hearings were one after the other. It was very fatiguing. The applicant felt that it was a losing battle and she had a period of exhaustion. This is why the delay occurred.

19The 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 inquire about her rights. 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 Paul v. Grand River Hospital (Specialized Mental Health Unit), 2015 HRTO 971 at para. 7

20In this case, during the one-year limitation period (the year following the termination), the applicant’s union filed a grievance. The applicant filed an ESA claim and a DFR complaint. The applicant had access to her union for the period the grievance was filed and access to a lawyer on the DFR complaint. As such, the applicant had the means to inquire about her human rights.

21More importantly, during the DFR proceeding, it appears that the applicant drew the connection between her disability (the workplace injury) and her termination. The applicant believed the events leading to termination all started after she was injured. Thus, the applicant was aware of her human rights in 2012 when she made the DFR complaint. Had she proceeded to file her Application at that time, it would have been timely.

22The applicant filed materials on the preliminary hearing. In these materials, she included a doctor’s note dated December 11, 2014 confirming that the applicant experiences chronic anxiety. The applicant relies on this note as a further explanation for her delay.

23In my view, the applicant’s mental state in 2014 cannot be relied upon to explain her delay after December 2012, the expiry of the limitation period. This case differs significantly from the case of M.C. v. London School of Business and Finance Canada, 2015 HRTO 635 where the applicant’s psychiatrist testified the applicant’s emotional state was “the leading determinant factor in his inability to file his application” in a timely way. There is no such evidence here. In particular, there is no medical evidence of the applicant’s mental state in 2012 and how that state impacted her ability to file this Application.

24The applicant has failed to provide a good faith explanation for her delay in filing this Application. Pursuing other avenues of redress is not a good faith explanation. During the one year limitation period, the applicant pursued multiple legal processes, all relating in some way to the termination of her employment. During this time, she had the ability to obtain advice about her human rights.

25It is clear from the submissions of the applicant that the termination of her employment in December 2011 has had a tremendous impact on her. She has pursued multiple avenues to obtain redress and has failed at every turn. Unfortunately, she must fail here too. Limitation periods are important because they ensure legal proceedings are filed in a timely way. This facilitates the fairness of these proceedings. Parties cannot wait for the outcome of other proceedings to file before the Tribunal. Applications would be significantly delayed and the fairness of the proceeding would be affected if this were allowed.

26The applicant has failed to establish a good faith reason for her delay. In light of this finding, it is not necessary to determine the question of prejudice.

27For these reasons, the Application is dismissed for delay.

ORDER

28This Application is dismissed.