Jeremiah McCann v. Toronto Paramedic Services, 2017 HRTO 903

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeremiah McCann

Applicant

-and-

Toronto Paramedic Services

Respondent

DECISION

Adjudicator: David Muir Date: July 19, 2017 Citation: 2017 HRTO 903 Indexed as: McCann v. Toronto Paramedic Services

1In this Application filed on May 24, 2016 the applicant alleged discrimination in employment because of disability.

2The Application was delivered to the respondent on June 9, 2016 and the respondent filed its Response on July 15, 2016.

3The applicant requested and was granted an extension to file his Reply which was received on August 27, 2016.

4In a Case Assessment Direction (“CAD”) issued on December 21, 2016 the Tribunal directed in response to a Request filed by the respondent on October 12, 2016, that a summary/preliminary hearing be held to hear submissions from the parties about whether or not this Application should be dismissed on the basis that:

a. It appears that some of the allegations may be untimely; and,

b. There is no reasonable prospect that the Application or part of the Application will succeed.

5On December 22, 2016 the applicant filed a Request for Order During Proceeding (“Request”) seeking substantial amendments to the Application. The respondent responded to the Request arguing that the Request should be denied and that it was an abuse of process.

6The Tribunal issued a CAD on January 10, 2017 directing that the applicant’s Request may be addressed at the summary/preliminary hearing.

7In a further CAD issued on June 2, 2017 the parties were directed to be prepared to make submissions about whether or not the applicant’s Request to amend the Application was itself out of time because it included allegations of alleged incidents of discrimination said to have occurred more than one year prior to the Request being made.

8The summary/preliminary hearing took place by telephone conference call on June 6, 2017. All parties participated.

9The Application is dismissed. I find that the Application was filed more than one year after the last incident of discrimination.

10In his Application as originally filed the applicant asserts that he was discriminated against and ultimately dismissed because he was a person with a perceived disability. There is no direct evidence that this was the case but the applicant argues that the inference can be drawn from a number of allegations of unfair treatment. The applicant also relies on two remarks made by two different individual which the applicant argues can be interpreted as relating to an alleged perception that the applicant was or had been in the past a person with a disability. The alleged discrimination culminated in the applicant’s dismissal on May 29, 2015.

11In his Request to amend the Application amongst other substantial amendments the applicant sought to add additional allegations which would extend the time period for filing of the Application. The intervenor filed a grievance on behalf of the applicant and three grievance meetings were held. The respondent’s step 3 denial of the grievance was recorded in a letter dated October 13, 2015. The applicant seeks to rely on these three meetings and the position taken by the respondent in those meetings as further incidents of discrimination.

12Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:

(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.

13As indicated the Application was filed on May 24, 2016. The Application was received by the Tribunal at 6:55 p.m. on May 20, 2016 and was deemed received on May 24, 2016 by operation of the Tribunal’s Rules of Procedure which provide in Rule 1.19:

Documents received after 5 p.m. by fax or e-mail will be deemed to have been received on the next business day.

14May 20, 2016 was the Friday before the May long weekend and accordingly pursuant to the Tribunal’s Rules the Application was deemed to have been received on May 24, 2016.

15The Tribunal acknowledged receipt of the Application in correspondence dated May 26, 2016. Unfortunately in the Notice of Application the Tribunal advised the parties that the Application had been received on May 25, 2016. This was in error and although it does not affect the resolution of the issue the Tribunal regrets the error.

16As the Application was received after 5 p.m. on May 20, 2016, it is out of time, being filed more than one year after the final incident of discrimination. The applicant’s only explanation for the delay was offered to explain why he believed that he had filed the Application on May 20, 2016, when the Tribunal had indicated that it was received on May 25, 2016. At the summary hearing it became clear that the Application was filed at 6:55 p.m. on May 20, 2016, and the applicant received an immediate confirmation of that. The applicant offered no further explanation for the actual delay which has occurred here. As such, there is no explanation for the delay.

17If the final incident of alleged discrimination occurred on May 20, 2015 then the Application must be dismissed. However on December 21, 2016 the applicant filed a Request seeking to amend the Application in substantial ways. He also made several allegations extending beyond his dismissal on May 20, 2015 these being the three grievance meetings held between the intervenor and the respondent. The applicant relies on the positions the respondent took in these meetings.

18In my view these new allegations are not new incidents of discrimination for a number of reasons. First, in my view the parties’ interactions in the grievance procedure cannot, except perhaps in extraordinary circumstances, be incidents of discrimination. Grievance arbitration is an adversarial process and the parties are entitled to take positions which may be perceived as unfair. Secondly, the mere confirmation of a decision taken months prior is not an act of discrimination.

19Moreover the applicant’s assertions about the grievance process disclose no evident link to any Code ground. The applicant says that the respondent misstated the facts, denied him procedural fairness and seemed intent on their position that he had been rightfully dismissed. None of this engages the Code and there is no evidence to which the applicant can point that would link any of this alleged unfairness to any Code ground. Finally the Request to amend in which these allegations are found is itself untimely being made more than a year after the final alleged event. The last alleged act being the final denial of the grievance confirming the earlier decision of the respondent to dismiss the applicant. This was confirmed in a letter date October 13, 2015. The Request to amend was filed on December 21, 2016 more than a year later.

20For these reasons I find that the final alleged incident of discrimination was the applicant’s dismissal from his employment on May 20, 2016.

21For all of these reasons the Application is dismissed. Having disposed of the case on that basis, there is no need to address the other issues raised by the parties.