Mammarella v. Adecco Employment Services Ltd., 2017 HRTO 1630

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erin Mammarella

Applicant

-and-

Adecco Employment Services Ltd.

Respondent

DECISION

Adjudicator: Mary Truemner

Date: December 7, 2017

Citation: 2017 HRTO 1630

Indexed as: Mammarella v. Adecco Employment Services Ltd.

APPEARANCES

Erin Mammarella, Applicant Self-represented

Adecco Employment Services Ltd., Respondent Paul Schwartzman, Counsel

1This Application, filed on February 13, 2017, alleged discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application described the period prior to the termination when the respondent allegedly failed to accommodate the applicant's disability because it did not consult with her about returning to work, presumably with modifications. The last event that the applicant described in the Application as a Code violation was the termination of her employment on January 28, 2016. The Application, then, was filed more than a year after the termination of the applicant's employment.

2On April 21, 2017, the Tribunal sent the applicant a Notice of Intent to Dismiss, advising the applicant that the Application was filed more than a year after the last incident of alleged discrimination and the applicant had provided no "good faith" reason for the delay.

3In response to the Notice, the applicant filed submissions arguing that she did not realize the limitation period was one year, and the delay was the fault of a lawyer who she retained for advice in Employment Standards matters after the termination. He told her she had two years to commence an application at the Human Rights Tribunal. She indicated that he was very helpful in the Employment Standards matters, and she was successful with her claims at the Ministry of Labour, but it appears that she did not retain him with respect to her human rights matters. She indicated that someone at the Ministry of Labour also told her to go to the Tribunal. She argued as well that she should not be penalized for being only two weeks beyond the one year period, because she was vulnerable and anxious after the termination.

4The Tribunal then required that the respondent file a Response. In it, the respondent argued that the Application should be dismissed for delay.

5The applicant filed a Reply which argued that the delay was in good faith because the applicant made an honest mistake without fraud or deceit, and the delay was only two weeks. In her Reply, she stated that she recalled that her lawyer had not told her she had two years to file an Application under the Code, but two years to file a wrongful dismissal claim in the courts.

6A preliminary hearing was held November 30, 2017 by teleconference to address the issue of delay. The applicant confirmed that the reasons she believed the Tribunal should not dismiss the Application were that it was a short delay of two weeks; she was anxious and dealing with her ongoing disabilities, including pain; and, she made the mistake about the deadline in good faith because it was an honest mistake. She confirmed that she did not mean to pursue an argument that she was provided the wrong advice about the limitation period by anyone else, and she emphasized that she herself was responsible for the mistake.

finding

7An application will only be dismissed at a preliminary stage if it is "plain and obvious" on the face of the application that it does not fall within the Tribunal's jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381.

8For the reasons set out below, I orally dismissed the Application at the preliminary hearing because I determined that it is plain and obvious that the Application is untimely and should be dismissed for delay.

reasons

9Section 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. Without a finding of good faith for delay, the Tribunal may not take jurisdiction over the allegations, even if that delay was a short delay beyond one year as emphasized by the applicant.

10In 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 within the one year period.

11A lack of knowledge about one's rights will only amount to good faith if an applicant establishes that he or she had no reason to make inquiries sooner about his or her rights. See Simmons v. Ontario (Transportation), 2010 HRTO 1884; Stewart v. Mitten Vinyl, 2010 HRTO 1628; Arcuri v. Cambridge Memorial Hospital, 2010 HRTO 578.

12In this case, the applicant retained counsel for advice on employment standards matters, but she provided no reasonable explanation as to why she did not inquire about her rights under the Code in a timely manner. It appears that her focus had been instead on employment standards claims and a wrongful dismissal claim. I find that she could easily have inquired about her rights under the Code. As such, I find that the applicant's mistaken belief about the limitation period does not establish that the delay was incurred in good faith.

13In addition, the Tribunal does accept that a delay may be in good faith because of an applicant's disability. See Dionne v. Toronto (City), 2011 HRTO 317. However, the Tribunal has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360 and James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 (Div. Ct.) at paras. 45 – 50.

14In this case, the applicant has not provided the Tribunal with any information that could establish that her disability prevented her from pursuing her legal rights under the Code in a timely way. On the contrary, she made it clear that despite any pain, confusion or anxiety related to any disability, she was able to retain counsel for advice after the termination, and pursue claims under the Employment Standards Act with which she indicated she was successful, those claims ending through a settlement in December 2016. Given that her health issues did not affect her ability to pursue those claims, and to retain counsel for legal advice about them, I find that any health issues the applicant experienced after the termination does not establish that the delay in filing the Application was incurred in good faith.

15While the applicant may have honestly held a mistaken belief about the limitation period established by the Code, I find it is plain and obvious that the applicant's delay was not incurred in good faith, as that term has been interpreted by the Tribunal.

order

16For the reasons set out above, the Application is dismissed as untimely and therefore outside the Tribunal's jurisdiction.