HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
The Estate of Leonard Fox Applicant
-and-
Mackenzie Health Respondent
DECISION
Adjudicator: Josée Bouchard Date: August 31, 2017 Citation: 2017 HRTO 1129 Indexed as: Fox Estate v. Mackenzie Health
APPEARANCES
The Estate of Leonard Fox, Applicant Sandra Fox, Estate Trustee
Mackenzie Health, Respondent André Nowakowski, Counsel
INTRODUCTION
1This is an Application, pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), alleging the respondent Mackenzie Health contravened the terms of the settlement reached between the parties.
2The Tribunal held the hearing on August 16, 2017.
BACKGROUND
3On December 18, 2014, the parties signed Minutes of Settlement (“MOS”).
4The applicant filed this Application on March 15, 2016, alleging the respondent failed to comply with paragraphs 3 and 4 of the MOS, which provide:
The Respondent undertakes to review and consider revising as appropriate its Accessibility Policies and Procedures, and any other policy that would apply specifically to its Deaf, Deafened, and Hard of Hearing patients. In reviewing and considering revising the above-mentioned policies, the Respondent undertakes to review other policies of other Health Providers, including Southlake Regional Health Centre. The Respondent agrees to do this within the next six months with a copy, if any, to be sent to Sandra Fox.
The Respondent undertakes to ensure that all staff, volunteers, and students undergo awareness training specific to Deaf, Deafened, and Hard of Hearing patients. The Respondent agrees that this training will begin within the next six months.
5Paragraphs 3 and 4 both refer to a period of implementation of six months following the MOS signed on December 18, 2014. The six month period ended on June 18, 2015. The applicant filed the Application on March 15, 2016, about nine months after the date of expected implementation of paragraphs 3 and 4 and about three months after the limitation period established in s. 45.9(3) of the Code. The respondent argues that, in addition to having complied with paragraphs 3 and 4 of the MOS, the Application was not filed in a timely manner.
6This decision addresses the following:
a. Should the Tribunal dismiss the Application because of delay pursuant to s. 45.9(3) of the Code?
b. Did the respondent contravene paragraphs 3 and/or 4 of the MOS?
7The applicant’s representative and estate trustee explained that she works as a Sign Language Interpreter (“SLI”) and often works for the respondent. She stated that since the execution of the MOS, she has worked frequently for the respondent, sometimes more than once a month. She believes that staff members are not trained to identify when a person requires a SLI and the process to request such service.
8The applicant recalled an incident that she believed occurred in 2015 but could not remember when exactly. She was called to attend at the respondent’s workplace. She introduced herself as the SLI for the family. The nurse told her that the patient, a boy, could speak and did not require an interpreter. The applicant found this very insensitive as his parents are deaf and required interpretation.
9The applicant argues that the respondent has not complied with paragraph 3 of the MOS as it has not given her, within 6 months of execution, the revised or new copies of the policies outlined above. She also argues that the 2015 incident shows that staff members at the respondent’s workplace remain untrained and that the respondent has not complied with paragraph 4 of the MOS.
DELAY
10Section 45.9(3) of the Code states:
If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contraventions, within six months after the last contravention in the series.
11Section 45.9(3) of the Code requires that a Breach of Settlement Application be filed within 6 months of the alleged contravention or, if there are a series of contraventions, within 6 months of the last of the series.
12Paragraph 3 of the MOS provides that the respondent was to “undertake to review and consider revising as appropriate” its accessibility policies and procedures, and any other policy that would apply specifically to its Deaf, Deafened, and Hard of Hearing patients and it agreed to do so within six months of the MOS with a copy, if any, to be sent to the applicant.
13I find that the implementation of paragraph 3 of the MOS had to occur within six months of execution of the MOS, or more specifically before June 18, 2015, which is the date of the alleged contravention.
14Paragraph 4 of the MOS provides that the respondent was to undertake to ensure that all staff, volunteers, and students undergo awareness training specific to Deaf, Deafened, and Hard of hearing patients. The only timeline provided in the MOS to comply with this obligation was that this training would begin within six months of the MOS.
15I find that the implementation of paragraph 4 of the MOS had to begin within six months of execution of the MOS, or more specifically before June 18, 2015, which is the date of the alleged contravention.
16Consequently, the Application is, on its face, untimely. I turn now to consider whether the applicant has a good faith explanation for the delay in filing her Application.
17The applicant explained that she allowed extra time for the respondent to comply with the MOS because of the organization’s size and the number of staff and volunteers it employs. She also maintains that after the execution of the MOS, life carried on and it slipped her mind to file an Application. It is only when the 2015 incident happened that she decided to review the MOS and file the Application. She admitted that she did not file immediately after the incident as she was busy working and her time got away from her.
18The Tribunal has discretion to proceed with a breach of settlement application where the delay associated with filing the application exceeds the six month limitation period and where the delay is found to have been incurred in good faith. I have considered the applicant’s explanation and am not satisfied that she has met the good faith requirement with respect to delay. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.
19The Tribunal has found that the failure to file an application in a timely manner because the applicant did not think of it at the relevant time does not constitute a good faith reason for the applicant’s delay. See Tilahun v. TriCo Group Inc., 2013 HRTO 1042. I also find that allowing the respondent more time to implement the MOS does not constitute a good faith reason for the late filing. The timeline required to implement the MOS was taken into consideration and agreed to by the parties when they finalized the terms of the MOS.
20The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Consequently, it is not necessary to determine whether the respondent has demonstrated substantial prejudice as a result of the delay.
21Given that I am not satisfied there is a good faith explanation for the delay, there is no need to consider whether the respondent has contravened paragraphs 3 and 4 of the MOS. However, because the applicant was very concerned that the respondent had not complied with the MOS, I believe it is appropriate to outline how the respondent has complied with the MOS.
IMPLEMENTATION OF PARAGRAPHS 3 AND 4 OF THE MOS
22Ashton White, Director of Human Resources with the respondent, testified in an unembellished and straightforward manner. Mr. White was a credible witness.
23Mr. White testified that he signed the MOS for the respondent and was responsible to oversee the implementation of paragraphs 3 and 4 of the MOS.
24Mr. White pointed to at least nine policies and brochures adopted by the respondent prior to the MOS to address the needs of persons with disabilities and Deaf, Deafen and Hard of Hearing patients.
25Mr. White testified that in February 2015, a Human Resources Intern finished reviewing the respondent’s internal policies and relevant external policies, including the Southlake Regional Health Centre policy, and made recommendations as to whether the respondent’s required new policies or should make changes to its existing policies.
26The Director of Employee Relations reviewed the memorandum and recommendations and concluded that no revisions to existing policies or new policies were required. In fact, the respondent believed that in a number of cases, its policies were better than the external policies it reviewed. Mr. White supported the recommendation.
27Because no revisions were made to the respondent’s policies, it had no obligation under paragraph 3 of the MOS to provide revised or new policies to the applicant.
28Mr. White also testified that a new online training module had been implemented in September 2014 prior to the execution of the MOS. The respondent reviewed the module after the execution of the MOS to ensure that the content included comprehensive information about Deaf, Deafen and Hard of Hearing patients and their rights to comply with paragraph 4 of the MOS. The respondent introduced the online training module in evidence and Mr. White pointed to each section that specifically addresses Deaf, Deafen and Hard of Hearing patients and their rights. The online training is mandatory for all of the respondent’s staff members and volunteers, including students, and the respondent maintains a data bank indicating which staff member has completed the module. Reminders are sent to those who have not successfully completed the module. Since September 2014, about 2,200 employees have successfully completed the module. Mr. White did not have the statistics related to volunteers as he does not manage the program.
29I find that the respondent complied with paragraphs 3 and 4 of the MOS.
ORDER
30For the above-noted reasons, the Contravention of Settlement Application is dismissed.
Dated at Toronto, this 31st day of August, 2017.
“Signed by”
Josée Bouchard Vice-chair