Vincenza Mastroianni v. Siskinds LLP, 2016 HRTO 906

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincenza Mastroianni Applicant

-and-

Siskinds LLP Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: July 11, 2016 Citation: 2016 HRTO 906 Indexed as: Mastroianni v. Siskinds LLP

WRITTEN SUBMISSIONS

Vincenza Mastroianni, Applicant Wesley Jamieson, Counsel

Siskinds LLP, Respondent Christopher Sinal, 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 respondent is a law firm, which employs the applicant as a law clerk. On September 23, 2014, she called in sick and did not appear for work. On September 26, 2014, she delivered a medical note to the respondent, which indicated that she was “totally disabled”.

4On September 28, 2015, the applicant filed an Application under s. 34 of the Code, which alleged that the respondent discriminated against her with respect to employment because of her disability, sex, sexual orientation, and age.

5It is unclear from the Application when the last alleged incident of discrimination occurred. In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “25/09/2014”. However, in the narrative of the Application, the list of alleged incidents of discrimination appear to culminate with an allegation that “[a]t some point prior to the Fall of 2014,” the applicant asked her supervisor why her salary was frozen, and did not receive an answer.

6Furthermore, despite the fact that, on its face, the Application was filed outside the one-year time limit in s. 34(1) of the Code, in section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why :”), the applicant left the answer space blank.

7On December 7, 2015, the respondent filed a Response and a Request for Summary Hearing, which set out a version of facts showing that the Application is untimely, and requested, among other things, that the Application be dismissed on a preliminary basis because it is untimely.

8On December 14, 2015, the Tribunal sent a Delivery of Response letter to the applicant, which attached the Response, and directed her as follows:

Rule 9.1 of the Human Rights Tribunal of Ontario’s (HRTO) Rules of Procedure requires an applicant who intends to prove a version of the facts different from those set out in a Response to include those facts in the Reply, unless that version of facts is already set out in the Application. An applicant may also file a Reply to respond to new matters raised in the Response.

The Reply (Form 3) must be delivered to the other parties and any organization or other person identified as an affected person in the Application or Response, and filed with the HRTO, along with a completed Statement of Delivery (Form 23), not later than January 11, 2016.

[Emphasis added]

9On January 11, 2016, the Tribunal granted the applicant’s counsel’s request for an extension of time to file a Reply and Response to Request for Summary Hearing until January 26, 2016.

10Notwithstanding the granting of an extension of time, the applicant did not file a Reply and Response to Request for Summary Hearing.

11On March 31, 2016, the Tribunal issued a Case Assessment Direction (“CAD”), which provided the following direction to the applicant at paras. 7-11:

In view of the fact that the Application appears to be outside the Tribunal’s jurisdiction because it is untimely, the Tribunal will address this issue first. This issue may be addressed without holding a Summary Hearing.

As things stand, despite the direction in the Tribunal’s Delivery of Response letter, the applicant has not disputed the respondent’s version of facts that the Application is untimely.

In the circumstances, within one week of the date of this CAD, the applicant shall file written submissions, which address the respondent’s request that the Application be dismissed on a preliminary basis because it is untimely.

If the applicant fails to file submissions, the Tribunal may decide the timeliness issue based on the respondent’s version of facts, or dismiss the Application as abandoned.

12On April 8, 2016 (one day after the deadline set out in the CAD), the applicant filed written submissions, which addressed the respondent’s request that the Application be dismissed on a preliminary basis because it is untimely.

ANALYSIS

13The first issue to determine is when the last alleged incident of discrimination occurred.

14In her submissions, the applicant stated that “just before her medical leave which began, on or about September 26, [2014],” she asked her supervisor for a raise and was reprimanded for asking. She alleged that this reprimand constituted a failure to accommodate her disability-related needs, and resulted in her having to take a medical leave of absence. She stated that the last alleged incident of discrimination is this incident and having to take a medical leave of absence.

15I disagree with the applicant’s submission that the last alleged incident of discrimination includes taking a medical leave of absence. In my view, taking a medical leave of absence is the effect of an alleged incident of discrimination, rather than a further alleged incident of discrimination. See Dewling v. Toronto Police Services Board, 2014 HRTO 1617 at para. 23; Garrie v. Janus Joan Inc., 2012 HRTO 1955 at paras. 32-42; and Mafinezam v. University of Toronto, 2010 HRTO 1495 at paras. 13-17.

16For reasons that remain unclear, the applicant has remained vague about when the last alleged incident of discrimination involving a request for a raise from her supervisor occurred. However, in view of the fact that Fall began on September 22, 2014 and the applicant was off work from September 23, 2014 onwards, I find that it was before September 22, 2014. Given the Application was not filed until September 28, 2015, I find that the Application was filed 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 her 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 (“Cartier”) at para. 21.

19Furthermore, 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.

20In her submissions, the applicant stated that if the Tribunal does not accept that her Application was filed in a timely manner, her delay in filing her Application was incurred in good faith because of her difficulty in ending an abusive relationship with a former partner in the spring and summer of 2015; financial hardship; and unstable health experienced by her after negotiations relating in part to the Application began in or around April 2015.

21I find that the applicant has not established that her delay in filing her Application was incurred in good faith. The reasons that she provided to explain the delay are extremely vague. There is no explanation whatsoever how her difficulty in ending an abusive relationship, experiencing financial hardship, and having unstable health rendered her incapable of filing the Application within the one-year time limit in s. 34(1) of the Code.

22In view of my finding that the applicant’s delay in filing her 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.

ORDER

23The Application is dismissed.