HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
The Estate of Judith Taylor
Applicant
-and-
Royal Canin Canada Company
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Taylor Estate v. Royal Canin Canada Company
APPEARANCES
The Estate of Judith Taylor, Applicant
Cézanne Charlebois, Counsel
Royal Canin Canada Company, Respondent
Anneli LeGault, Counsel
Introduction
1Judith Taylor, by all accounts, was a highly esteemed and skilled veterinarian. Dr. Taylor began her employment with the respondent, Royal Canin Canada Company (“Royal Canin”), in July 2008. On January 24, 2014, to her employer’s surprise, Dr. Taylor submitted her resignation at 8:00 a.m. by way of email. In the resignation letter, Dr. Taylor “apologized for her inability to perform up to the Mars principles and for the stress and damage” she had caused. On January 26, 2014, Dr. Taylor committed suicide. This was a tragedy that left Dr. Taylor’s spouse, Mr. Taylor, their children and family in deep sorrow. The Tribunal expresses its sympathy to Mr. Taylor and his family.
2This application was filed by the Estate of Judith Taylor on April 20, 2016, alleging Dr. Taylor experienced 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”).
3The applicant submits that Dr. Taylor was part of a very unique and vulnerable group of persons. She suffered from a profound disability that was never diagnosed. Dr. Taylor never made a request to her employer for an accommodation, she never confided in her employer about personal issues, she had no history of absenteeism and she did not know that she was suffering from a mental illness.
4On June 6, 2017, the Tribunal issued a Case Assessment Direction directing a preliminary hearing 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 may be untimely; and/or
b. There is no reasonable prospect that the Application or part of the Application will succeed.
5The Tribunal held the preliminary hearing on August 29, 2017.
delay
The Applicant’s Submission
6The applicant acknowledges that the Application was filed more than one year after the last incident of discrimination, which was January 24, 2014, the day of Dr. Taylor’s resignation. The applicant submits that given the circumstances of this case and the delay in receiving relevant information, the Tribunal should find the applicant acted in “good faith” in filing the untimely Application.
7The applicant maintains that Dr. Taylor’s spouse has been actively pursuing Dr. Taylor’s rights under the law since her suicide. The delay in filing the Application is due to the difficulty the applicant encountered in obtaining any meaningful information from the respondent, identifying witnesses, and receiving information from the Ontario Provincial Police (“OPP”) regarding their investigation.
8The applicant argues that the circumstances surrounding Dr. Taylor's suicide were such that it was not immediately clear what could have driven her to end her life. After Dr. Taylor's death, her husband was left with extremely limited and confusing information and the efforts to piece together what caused his wife's mental decline and suicide have been slow.
9The applicant maintains that Mr. Taylor was only made aware two days before Dr. Taylor’s suicide that she was experiencing problems at work. The information he was able to obtain from her suggested an onset of paranoia. Dr. Taylor claimed that the employer would sue her, that she was being followed, and that she had overheard something at work that she shouldn’t have. She informed her husband once she had resigned from her job, but gave him no indication as to why she had done this.
10The applicant argues that it was not until one year and nine months after Dr. Taylor's death that counsel for the applicant was able to talk to a former veterinarian colleague who was able to provide some information on the workplace environment and conditions that led to Dr. Taylor's death. The applicant maintains that it is only when speaking to Dr. Taylor’s colleague that it determined that what happened to Dr. Taylor at work was linked to a Code-related ground. The applicant maintains that while the colleague was willing to talk with Mr. Taylor, she was not willing to speak to his counsel. The first conversation between counsel and Dr. Taylor’s colleague occurred on September 2, 2015.
11The applicant submits that it launched a Privacy and Information Appeal in order to obtain more information on the workplace. This information from the Privacy and Information Appeal was only received in February 2016.
12The applicant submits that since January 2014, it has been actively trying to piece together the circumstances surrounding Dr. Taylor’s suicide so that her rights may be pursued. The delay has been caused by the lack of available information to allow the applicant to know whether an application could be brought before the Tribunal. The case law allows a delay in good faith under the discoverability doctrine in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case.
13The applicant maintains that it has not intentionally delayed proceeding with the Application in order to build a stronger case, but rather it has been trying to determine if there was evidence of discrimination within Dr. Taylor’s workplace.
14Given the unfortunate and unusual circumstances of this case and the applicant's efforts to pursue Dr. Taylor’s rights, the applicant asks the Tribunal to find that the delay was incurred in good faith.
Respondent’s Submission
15The respondent maintains that the applicant has failed to establish a good faith reason for its delay and, at this stage, it is appropriate to dismiss the Application on the basis that it is outside of the Tribunal’s jurisdiction.
16The respondent submits that the events alleged in the Application occurred between May 2013 and January 2014, more than two years before the April 20, 2016 Application. As such, the Application far exceeds the one-year limitation period established by the Code.
17The respondent maintains that the applicant has not established that its delay in filing the Application was incurred in good faith. The respondent notes that the applicant cites, in its submission on timeliness, the following specific reasons for delay:
a. Lack of cooperation from the respondent;
b. It is not until one year and nine months after Dr. Taylor’s death that it was able to locate and contact a former veterinarian colleague who was able to provide some information on the workplace environment and conditions that led to Dr. Taylor’s death; and
c. It launched a Privacy and Information Appeal in order to obtain more information on the workplace. The information was received finally in February 2016.
18The respondent submits that the applicant’s reasons for the delay are inconsistent with the allegations and documents produced. Those indicate that the applicant was in fact capable of filing its Application in a timely fashion.
19First, the respondent denies that it was uncooperative. The respondent maintains that it willingly participated in all investigations related to Dr. Taylor’s death, including the OPP investigation, the response to the Application and the Workplace Safety and Insurance Board (“WSIB”) investigation in relation to the applicant’s workplace safety claim.
20Further, the respondent denies that it did not cooperate with Mr. Taylor’s requests for information. The respondent maintains that after Dr. Taylor’s death, it communicated its willingness to support Mr. Taylor and his family and remained in contact with Mr. Taylor. Mr. Taylor attended the respondent’s facility to pick up documents relating to Dr. Taylor’s employment. At all times after Dr. Taylor’s death, Mr. Taylor had the contact information of the respondent’s Human Resources Director, and was told that he could contact the respondent with inquiries at any time; however, he did not do so.
21The respondent further submits that the applicant failed to establish that it did not have the ability to talk to Dr. Taylor’s veterinarian colleague within one year of the events alleged.
22The respondent observes that in its Application, the only colleague the applicant refers to is Dr. Taylor’s veterinarian colleague and the applicant relies almost entirely on her alleged statements and opinions. Notably, along with its Application, the applicant filed an email dated October 3, 2014 from the veterinarian colleague to Mr. Taylor. In that email, Dr. Taylor’s colleague informs Mr. Taylor that she has resigned from her employment with the respondent. The contents of the email indicate that Mr. Taylor and Dr. Taylor’s colleague had an ongoing friendship and confirm that Mr. Taylor had access to the colleague’s contact information and could contact her with respect to information regarding the Application within the one-year limitation period.
23The respondent also contends that, prior to filing the Application, the applicant filed WSIB claim 27028286, received by the WSIB Investigator on November 27, 2014, which claimed that Dr. Taylor committed suicide as a result of harassment at work. The applicant had legal representation. The applicant received the WSIB Case Manager’s decision on September 24, 2015, and decided to appeal that decision. There was nothing preventing the applicant from also filing an Application with the Tribunal.
24The respondent further maintains that between November 27 and December 4, 2014, counsel for the applicant gave the WSIB Investigator the contact information for Dr. Taylor’s colleague and the WSIB Investigator interviewed her on December 16, 2014. As such, the applicant’s record establishes that the applicant did in fact have access to the information provided by Dr. Taylor’s colleague, which it relies on in its Application, within the one-year timeframe established by section 34 of the Code.
25The respondent argues that the applicant’s documents contain a letter from the applicant’s counsel to the WSIB dated September 2, 2015, which confirms that as of that date, the applicant had received partial access to the OPP records. The letter indicates that, as of September 2, 2015, the applicant’s counsel had a “lengthy telephone conversation” with Dr. Taylor’s colleague who gave the opinion that “Ms. Taylor’s death by suicide and mental illness definitely arose out of an [sic] in the course of Ms. Taylor’s employment for Royal Canin Canada.”
26The respondent argues that even though the applicant did not receive the full OPP file until February 2016, the documents in the Application confirm that the applicant had access to Dr. Taylor’s colleague prior to April 20, 2016, and, had it chosen to do so, the applicant could have accessed the information from Dr. Taylor’s colleague regarding Dr. Taylor’s employment with the respondent within the one-year timeframe required by the Code. Further, and in any event, the applicant does not refer to, or rely on, the information contained in the manager’s statement or any other additional OPP documents in its allegations in the Application. As such, the applicant had no reason to wait until April 20, 2016 to file its Application.
Analysis and Decision
27Section 34 of the Code states in part:
(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.
28Section 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. Subsection 34(2) allows for a filing of an application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.
29When establishing whether there is a “good faith” delay, the applicant must show something more than simply an absence of bad faith; rather, the applicant must show that he acted with all due diligence. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24.
30The last incident occurred on January 24, 2014, when Dr. Taylor resigned from her position with the respondent. The Estate filed the Application on April 20, 2016, more than two years after the last incident and more than one year past the timeline established in s. 34 of the Code.
31I find the applicant has not established that its delay in filing the Application was incurred in good faith. Although the applicant argued that it had insufficient information to identify a potential Code violation, the applicant had access to information as follows well within the one-year timeline:
a. The documents filed by the applicant with the Application clearly show that Mr. Taylor was in communication with Dr. Taylor’s veterinarian colleague on October 3, 2014, within one year of the last incident. The contents of the email indicate that Mr. Taylor and Dr. Taylor’s colleague had an ongoing friendship, confirm that Mr. Taylor had access to the colleague’s contact information and could contact her with respect to information regarding the Application within the one year limitation period.
b. The applicant filed WSIB claim 27028286, received by the WSIB Investigator on November 27, 2014, within the one year limitation period, which claimed that Dr. Taylor committed suicide as a result of harassment at work. Among other witnesses, the WSIB Investigator contacted Dr. Taylor’s veterinarian colleague on December 16, 2014 and had a lengthy and detailed discussion with her about the relationship between Dr. Taylor’s mental and physical well-being and her work. Among other things, Dr. Taylor’s colleague noted that “the harassment [at work 6 months prior to her suicide] had to do with the workload the worker was experiencing”, “she believed [Dr. Taylor] struggled with the increased workload”, “what also added to [Dr. Taylor’s] stress was that she was being asked to take on more enquiries dealing with internal medicine which she was not trained for” and “it clearly was getting very overwhelming for her, as was evidence of how the worker looked […]”. This information was available within one year of the last incident.
c. The applicant states that the veterinarian colleague only reluctantly and emotionally revealed, 1 year and 9 months after Dr. Taylor’s death, the most important insights into what was occurring at the workplace. However, that information was available to the applicant as it had access to Dr. Taylor’s colleague within one year of the last incident. The information was provided to the WSIB in December 2014 and the applicant failed to explain why Dr. Taylor’s colleague was willing to speak to the WSIB but not to the applicant’s counsel about the incidents.
32The Tribunal has consistently stated that failing to file until the discovery of evidence that could assist in proving a claim does not justify delay (see for example Miller v. Prudential Lifestyles Real Estate, above):
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, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim.
33I find that the applicant had sufficient information during the year following the last incident to file an Application with the Tribunal and it failed to do so.
34In addition, prior to filing the Application, the applicant filed a WSIB claim which claimed that Dr. Taylor committed suicide as a result of harassment at work. The applicant pursued that claim and received the WSIB Case Manager’s decision on September 24, 2015. The applicant decided to appeal that decision. It is not until after it received the February 12, 2016 WSIB decision, claim 27028286, dismissing the claim for traumatic mental stress that the applicant filed its Application before the Tribunal. While I have no evidence of when the WSIB claim was filed, it was clearly done so prior to the WSIB Investigator’s receipt of the file on November 27, 2014. This claim was based on the same or similar allegations as are raised before this Tribunal and is convincing evidence that the applicant had sufficient knowledge to file a claim before this Tribunal at the time it filed its WSIB claim. The applicant failed to show that there was something preventing it from also filing an Application with the Tribunal, particularly in light of the fact that the applicant was represented by legal counsel.
35The Tribunal has clearly stated that the assertion that an applicant had to complete a WSIB process prior to pursuing a human rights application is not a reasonable explanation for an untimely application (See Thomas v. Toronto Transit Commission, 2009 HRTO 1582 at paras. 13 and 14.
The respondents argue that the applicant’s assertion that he had to complete the WSIB appeals process prior to pursuing any other avenue does not constitute a good-faith basis for the delay and that the applicant’s pursuit of WSIB benefits does not justify a failure to file a human rights complaint or application in a timely way.
I agree with the respondent. The applicant has not provided a reasonable explanation for why he has waited over ten years to file a human rights application. Absent a reasonable explanation for the delay, I cannot conclude that the delay was incurred in good faith.
36In addition, in Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquiries about options for pursuing the alleged wrong.
37The 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.
38In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code. Consequently, the Tribunal need not address whether there is no reasonable prospect that the Application or part of the Application will succeed.
39The Application is dismissed.
Dated at Toronto, this 29th day of September, 2017.
“Signed by”
Josée Bouchard
Vice-chair