Mei Tan v. Liquor Control Board of Ontario, 2017 HRTO 1692

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mei Tan

Applicant

-and-

Liquor Control Board of Ontario

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 21, 2017

Citation: 2017 HRTO 1692

Indexed as: Tan v. Liquor Control Board of Ontario

APPEARANCES

Mei Tan, Applicant

David Conn, Counsel

Liquor Control Board of Ontario, Respondent

Justin Diggle, Counsel and Sean White, Student-at-law

1This is an Application filed on June 15, 2016 alleging discrimination with respect to employment because of race, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By correspondence dated October 13, 2016, the Tribunal advised the parties that this matter was being scheduled for a half-day in-person hearing to consider whether the Application should be dismissed due to delay.

3The hearing proceeded on September 11, 2017, at which time I heard the parties’ oral submissions. I also have considered all relevant materials filed by the parties as identified by me at the outset of the hearing.

4Section 34 of the Code states, in its relevant part:

34. (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 incidents to which the application relates; or

(b) if there was 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.

5The applicant acknowledges that the last alleged incident of discrimination raised in the Application occurred on February 28, 2014, when the applicant was suspended, which is 27 and a half months prior to the filing of the Application. While the respondent reserved its right to argue that the last alleged incident of discrimination occurred prior to February 28, 2014, it argued the issue on the basis that this was the last alleged incident.

6Clearly, the Application was filed well beyond the one year time period referenced in s. 34(1) of the Code. Accordingly, the issue before me is whether the applicant’s delay in filing the Application was incurred in good faith, as that term has been interpreted by this Tribunal.

7The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

8The applicant submits that her illnesses are the primary reason why she did not filed her Application in a timely fashion. However, 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 the disability was so debilitating as to prevent 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; Dionne v. Toronto (City), 2011 HRTO 317.

9The applicant states that she suffered from a mental health disability from the time of her suspension on February 28, 2014 to date, and that this prevented her from filing her Application in a timely manner. While the applicant also was involved in an accident in September 2014 which caused a physical disability, the material before me does not support that this played any significant role in her ability to file her Application.

10The applicant relies upon two medical letters submitted by her doctors to support her position. First, she relies upon a letter dated October 5, 2016 from her treating psychiatrist. This letter confirms the applicant’s mental health disability and that she has been obtaining ongoing treatment for this disability over the period from February 2014 to the date of the letter. The letter states that “due to the extent of her illness, [the applicant] was unable to lodge her complaint of harassment against her employer and therefore there was a delay in this occurring”. The letter further states: “Now, given that she is undergoing psychiatric treatment, [the applicant] is now able to proceed with her claim and I support her in this regard.” I note that the applicant had been undergoing psychiatric treatment from this same psychiatrist since February 2014. No explanation is provided by the psychiatrist as to why the applicant was unable to file her Application from February 2014 to May 2016, but then was able to file her Application in June 2016. The psychiatrist was not called to testify at the preliminary hearing.

11The second medical letter relied upon by the applicant is a letter dated August 18, 2017 from the applicant’s family physician. This letter states that “due to the severity of her symptoms, [the applicant] was unable to submit a complaint against her work and this would account for the delay.” This letter goes on to state: “she is still having treatment but more stable in terms of her illness and so [the applicant] is able to file the complaint against her employer and I fully support her in this.” While this letter at least provides the explanation that the applicant at some point in time was more stable in her treatment and that this explains why she was unable to file her Application, the letter does not indicate when this level of stability was reached. Once again, this doctor was not called to testify at the preliminary hearing.

12Of significance in this case is that, notwithstanding her mental health and physical disabilities, the applicant nonetheless was capable of taking other steps to address legal matters. In early March 2014, the applicant grieved her suspension under the applicable collective agreement. The material before me indicates that the applicant then met with the union regarding her grievance sometime in May 2014. In September 2014, the applicant was involved in an accident. Sometime after that, the material before me indicates that she was able to retain a personal injury lawyer to act on her behalf in relation to this accident. In July 2014, the applicant was provided with a long term income protection (“LTIP”) benefits package. In relation to her LTIP application, the applicant was capable of retaining legal counsel, who wrote to the respondent employer in late December 2014, and then engaged new legal counsel to assist her with her LTIP application, who wrote to the respondent employer twice in August 2015. The applicant thereafter retained her current legal counsel at least by January 2016, who commenced a duty of fair representation application to the Ontario Labour Relations Board (“OLRB”) on her behalf in March 2016. The Application to this Tribunal was commenced only after the OLRB issued its decision dated June 9, 2016 adjourning the applicant’s OLRB application for a period of 9 months in view of the ongoing grievance arbitration proceedings.

13In a number of cases, this Tribunal has held that an applicant has failed to establish that a delay in filing an application was incurred in good faith due to a disability, where the applicant has been able to initiate or pursue other legal proceedings during the period of the delay: see Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110; Doyle v. Canarm Ltd., 2009 HRTO 674; Sharma v. Securitas Canada Ltd., 2013 HRTO 176; Vallen v. Ford Motor Company of Canada, 2012 HRTO 932; Lawrence v. Co-operators Life Insurance Company, 2014 HRTO 1490.

14In my view, this principle applies equally in the instant case. Notwithstanding her mental health and physical disabilities, the applicant nonetheless was able to pursue a grievance, meet with her union, retain a personal injury lawyer to deal with her accident, retain counsel to assist her with her LTIP application, and retain current counsel to file and pursue an OLRB application. The medical information before me provides no real explanation as to why the applicant was able to pursue these other legal matters during the period of delay, but was unable to file a human rights application. As a result, I find that the applicant has failed to establish that her disabilities were so debilitating as to prevent her from filing her Application in a timely manner, as required in order to satisfy me that the delay was incurred in good faith.

15The applicant also takes the position that she was not aware of her right to file an application with this Tribunal until she retained a labour lawyer in January 2016, and that she filed her Application within a reasonable period of time thereafter. This Tribunal generally has found that ignorance of one’s rights under the Code and a failure to make inquiries about one’s rights is not sufficient to establish that delay was incurred in good faith: see Desaulniers v. Canadian Auto Workers, 2009 HRTO 1743; Deslauriers v. Providence Care, 2017 HRTO 688. An oft-quoted passage from Lafleur v. Kimberley Scott, 2009 HRTO 1141 states:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer 2002 CanLII 44920 (ON CA), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

16In the instant case, in my view, the applicant had every reason to make enquiries about her rights. The instant Application has its origins in a settlement agreement entered into between the applicant and the respondent employer in February 2013. This settlement agreement expressly makes reference to the Code and the respondent’s Discrimination and Harassment Prevention policy. The instant Application as filed alleges that from the time of her return to work in late February 2013, the applicant was harassed by her supervisor and co-workers, culminating in the February 2014 suspension. She filed grievances in October and December 2013 alleging harassment. As a result, I find that the applicant either was aware of her rights under the Code within the period of delay or had reason to make enquiries about her rights, such that this does not provide a good faith explanation for the delay.

17The applicant further submits that she was pursuing her grievances and relying upon the union to move her grievances forward, which she alleges the union failed to do. She submits that she filed the OLRB application in an attempt to address this issue, and it was only after this that she felt that she needed to file her Application with this Tribunal. In this regard, this Tribunal has repeatedly held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities: see Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; Foley v. CAW-Canada Local 222, 2011 HRTO 1224; SB v. Toronto (City), 2012 HRTO 2018. As a result, I find that this too does not provide a good faith explanation for the applicant’s delay.

18While not pursued in argument before me, the applicant also filed written submissions stating that she lacked the financial resources to retain counsel to assist her in filing a human rights application. As noted by the respondent, this Tribunal’s process does not require that an applicant have legal representation in order to file an application. Further, this Tribunal has held that financial difficulties relating to an applicant’s ability to hire a lawyer does not constitute a good faith explanation for delay: see Moro v. Thames Valley District School Board, 2012 HRTO 436.

19Accordingly, for all of the foregoing reasons, the applicant has not satisfied me that the delay in filing her Application was incurred in good faith, as that term has been interpreted by this Tribunal. Given this finding, I do not need to consider whether the delay would cause any substantial prejudice to the respondent.

ORDER

20The Application is dismissed for delay.