Jerry Allen v. ACL Steel Ltd., 2017 HRTO 1095

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerry Allen

Applicant

-and-

ACL Steel Ltd.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: August 22, 2017

Citation: 2017 HRTO 1095

Indexed as: Allen v. ACL Steel Ltd.

APPEARANCES

Jerry Allen, Applicant

Tracy Allen, Representative

ACL Steel Ltd., Respondent

Kelsey Orth and Angela Wiggins, Counsel

background

1This Application alleges 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”). The Application also identified record of offences as a ground of discrimination. However, the applicant indicated at the hearing that this was a mistake. Accordingly, this ground is removed from the Application.

2This Application was filed on September 21, 2016 and relates to allegations said to have occurred between April 25, 2013 and March 2, 2014, the day that the applicant was permanently laid-off from employment with the respondent. The applicant maintains, however, that the last incident of discrimination occurred on February 25, 2016 when the respondent attempted to “block my appointment with the WSIB specialist to determine if I had indeed a permanent injury.”

3By Case Assessment Direction (“CAD”) dated April 24, 2017, the Tribunal directed that a preliminary/summary hearing be held in this matter to determine whether the Application should be dismissed, in whole or in part, on the basis that some or all of the allegations appear to be untimely and/or because there is no reasonable prospect that they will succeed.

4The hearing took place by teleconference on July 25, 2017.

decision

5For the reasons that follow, I find that the Application must be dismissed.

analysis

Delay

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.

8Implicit in the applicant’s narrative and his submissions is that he believes that his allegations comprise a series of incidents within the meaning of section 34(1)(b) with the last incident in the series occurring on February 25, 2016.

9The Tribunal has interpreted the phrase “series of incidents” in section 34(1)(b) as requiring that the alleged incidents be connected to each other in terms of their timing and their subject matter. The phrase “series of incidents” recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language of the section provides for flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct has been identified. The Tribunal has determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame. See Chintamen v. Toronto District School Board, 2009 HRTO 1225.

10In this case whether or not the alleged incidents of discrimination ending with the applicant’s lay-off on March 2, 2014 can be connected in terms of their subject matter with the February 25, 2016 alleged incident, the gap in time of almost 2 years between the allegations is simply too great to be considered a temporally connected series of incidents.

11As noted in Chintamen, the logic of section 34(1) is that gaps in time of one year or more will be sufficient to interrupt a putative series of incidents. In this case the gap in time is almost two years with no explanation for this significant gap in time.

12The allegations of discrimination relating to his employment prior to, and his lay-off on, March 2, 2014 are clearly out of time. The Application was filed almost 2 years after these alleged incidents of discrimination. Thus, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

13The 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.

14The 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 that: “I was not told about the possibility of filing a human rights claim until Sept. 8, 2016 when I stumbled upon “The Fair Practices Commission…” In my view, this essentially is an assertion that the applicant was unaware or ignorant of his legal rights and in particular his 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, however, 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.

15For these reasons, I find that this Application as it relates to allegations of discrimination prior to March 3, 2014 must be dismissed because they are 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.

No reasonable prospect

16The remaining allegation of discrimination allegedly having occurred on February 25, 2016 appears to be timely. The respondent argues, however, that this allegation should be dismissed because it has no reasonable prospect of success.

17The process for determining whether an application should be dismissed in whole or in part because there is no reasonable prospect of success is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests.

18The test the Tribunal applies at this stage in the process is whether allegations of discrimination have “no reasonable prospect of success.” It is the role of the Tribunal to examine the allegations and determine whether or not an application should move to the next step in the hearing process. If the Tribunal determines that an allegation of discrimination has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that the allegation of discrimination has no reasonable prospect of success it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of the application will move ahead, while part is dismissed.

19An applicant’s role in the summary hearing is to describe to the Tribunal the evidence in his/her possession or that may be reasonably available to the applicant that he/she proposes to call to support the belief that he/she experienced discrimination on the ground alleged. It is not for the applicant to demonstrate that an application has a reasonable prospect of success, nor is it sufficient that the application is considered unlikely to succeed.

20The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in a legal sense requires proof that unfair treatment is based, at least is part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

21The applicant alleges that on February 25, 2016, the respondent filed an objection with the WSIB to the applicant seeking an appointment with the WSIB specialist who would determine if he had a permanent disability. The applicant concedes that, within the WSIB process, the respondent had the right to make this objection. Nevertheless, the applicant believes that he had the right to seek a specialist’s opinion and that the objection was made out of anger and vindictiveness because the applicant made a WSIB claim and because the WSIB specialist may have determined that the applicant had indeed a permanent injury. The applicant “feels” that this is a violation of the Code.

22In my view the applicant is expressing frustration with the WSIB process and a sense of having been treated unfairly when the respondent raised its objection to the applicant seeking a specialized medical opinion regarding his alleged work injury. However, while the applicant did have an alleged injury, the applicant failed to point to any evidence that he has or any evidence that would be reasonably available to him that would demonstrate that the respondent objected to the medical examination because of the applicant’s alleged disability.

23Consequently, I find that the allegation that the respondent objected to the applicant obtaining further medical evidence for the purpose of his WSIB claim has no reasonable prospect of success.

order

24The Application is dismissed.