Singleton v. Cassellholme East Nipissing Home for the Aged, 2017 HRTO 1007

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jann Singleton

Applicant

-and-

Cassellholme East Nipissing Home for the Aged, Denise Sharshin, Jane Gratton, Barb Clancy (McGowen), Lise Ellis, Trina Milne, Angela Schewe and Jeannine Pennel-Smith

Respondents

-and-

Canadian Union of Public Employees and its Local 146

Intervenors

DECISION

Adjudicator: Keith Brennenstuhl

Date: August 4, 2017

Citation: 2017 HRTO 1007

Indexed as: Singleton v. Cassellholme East Nipissing Home for the Aged

APPEARANCES

Jann Singleton, Applicant

Peter Smith, Representative

Cassellholme East Nipissing Home for the Aged, Denise Sharshin, Jane Gratton, Barb Clancy (McGowen), Lise Ellis, Trina Milne, Angela Schewe and Jeannine Pennell-Smith, Respondents

Carolyn Kay, Counsel

Canadian Union of Public Employees and its Local 146, Intervenors

Devon Paul, Counsel

background

1This Application alleges reprisal and discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Application was filed on January 13, 2016 and relates to allegations said to have occurred prior to November 26, 2013. The applicant’s allegations pertain to her termination of employment with the organizational respondent on April 15, 2013.

2By Case Assessment Direction (“CAD”) dated June 1, 2017, the Tribunal directed that a preliminary hearing be held in this matter to determine whether the Application should be dismissed, in whole or in part, on the basis that:

a. It appears that some or all of the allegations appear to be untimely;

b. Another proceeding has appropriately dealt with the substance of the Application;

c. The applicant has signed a full and final release with respect to her employment with the organizational respondent and that to proceed with hearing the Application would amount to an abuse of the Tribunal’s process.

3In addition the preliminary hearing was to address the respondents’ request to remove the individual respondents.

4The hearing took place by teleconference on August 2, 2017.

decision

5For the reasons that follow, I find that the Application must be dismissed because the applicant has failed to provide a good faith explanation for the delay in filing her Application.

analysis

6Section 34 of the Code provides:

34(1) If a person believes that any of his or her rights under Part 1 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.

7These provisions have been found to be mandatory subject to section 34(2). The 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 seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

8This Application is clearly out of time. I accept the applicant’s assertion in her Application that the last event of alleged discrimination occurred November 26, 2013. Accordingly, the Application was filed more than 2 years after the last alleged incident of discrimination. Thus, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

9The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith” the applicant must show something more than the absence of bad faith and must provide a reasonable explanation for the delay.

10Essentially, the applicant posits that her employment experience with the organizational respondent was so traumatic that she did not have the emotional or mental capacity to make her Application within the limitation period and that it was not until December 2016 to January 2017, that she was fit enough to file her Application.

11The applicant asserts that her incapacity was a disability and that this contributed to the delay. Assuming without deciding that the applicant is a person with a disability, this fails to meet the standard required by the Tribunal’s case law. The test to establish a good faith explanation for failure to file a timely application is a high one and requires evidence of a substantial inability to initiate the process

12In Dionne v. Toronto (City), 2011 HRTO 317, the Tribunal commented on what was required of an applicant seeking to establish a good faith explanation on the basis of disability:

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see for example, Reid v. Ontario March of Dimes, 2008 HRTO 2207; Downer v. Little & Jarrett, 2010 992; and, Savage v. Toronto Transit Commission, 2010 HRTO 1360.

13In this case, there is no such evidence. The applicant filed a letter drafted by her psychiatrist and intended for the Workplace Safety and Insurance Board, dated April, 2014, indicating that the applicant had been under his care for several years for PTSD, that she was taking a variety of medications and that she was unable to work. The letter; however, does not indicate that her condition is so debilitating that it prevented her from pursing her legal rights.

14As an aside, I would note that the letter appears to have been written to assist the applicant with a WSIB claim she was then pursuing. In my view, this is evidence that the applicant had capacity to exercise her legal rights long before she filed her Application and, indeed, within the year following the last alleged incident of discrimination.

15The Application, Form 1, raises the following question: “If you are applying more than one year from the last event, please explain why?” The applicant answered, among other things, that she “had no idea she could seek redress against her employer”. In my view, this essentially is an assertion that the applicant was ignorant of her legal rights and in particular her rights under the Code and its requirement that an application be filed within the mandatory one-year limitation period. The Tribunal has said in many cases that ignorance of the law is no excuse in matters relating to delay in asserting one’s rights. See, Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 at para. 10 and Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8.

16For these reasons, I find that this Application must be dismissed because it is out of time and the applicant has not provided a good faith explanation for the delay. Given this conclusion, there is no need to address the issue of substantial prejudice.

17As this is dispositive of the Application, it is not necessary to address the issues outlined at (b) and (c) in paragraph 2 above or the respondents’ request to remove the individual respondents.

order

18The Application is dismissed.