HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fatemeh Maghzy
Applicant
-and-
Meadow Park Nursing Home
Respondent
-and-
Unifor Local 2458
Intervenor
DECISION
Adjudicator: Josée Bouchard
Indexed as: Maghzy v. Meadow Park Nursing Home
APPEARANCES
Fatemeh Maghzy, Applicant
Self-represented
Meadow Park Nursing Home, Respondent
Paula Rusak, Counsel
Unifor Local 2458, Intervenor
Mike Byrne, Representative
Introduction
1The applicant filed an Application on October 4, 2016, alleging discrimination with respect to employment because of record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On January 18, 2017, the respondent filed a Response, a Request for Summary Hearing and a Request for an Order During Proceedings requesting that the Application be dismissed.
3On February 17, 2017, the applicant filed a Response to a Request for an Order.
4On March 7, 2017, the Tribunal issued a Case Assessment Direction directing that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed and/or because it is outside of the Tribunal’s jurisdiction because it was filed beyond the one-year time limit contemplated by section 34 of the Code.
5The Tribunal further observed that:
Secondly it appears that there may be no evidence linking the actions of the respondents to the grounds claimed. In this regard in her Application the applicant has selected record of offences as the ground of discrimination but it appears that her allegation is that she was terminated because she sought accommodation of an alleged disability. This issue may be spoken to at the summary hearing.
6The Tribunal held the summary hearing on July 13, 2017.
7At the beginning of the hearing the applicant clarified that she relies on the ground of disability and not the ground of record of offences. The respondent did not oppose the request to amend the Application and the Tribunal granted the amendment.
Background
8The respondent is a long-term care facility that provides services to persons who are incapable of caring for themselves. The applicant worked for the respondent mostly as a food dietary aid for approximately 27 years, starting in 1988. The applicant worked as a regularly scheduled part-time employee, working a total of 22.5 hours a week.
9In 1998, the applicant accepted a second part-time position with a different long-term care facility (“the other employment”). She worked in her other employment 22.5 hours a week. The respondent was aware of the applicant’s other employment.
10In February 2015, the applicant assumed a full-time position with the other employer. She also wrote a letter to the respondent, dated February 29, 2015 (sic), complaining about harassment and the failure of the respondent to provide quality resident care. In the letter, the applicant tells the respondent that effective April 6, 2015, she would be changing her status from part-time to casual. She also tells the respondent that she would not work certain shifts, claiming not to be qualified or relying on health and safety reasons for refusing those shifts.
11The applicant explains that when she gave the letter to the respondent, she had not informed it that she had a full-time position at her other employment. Her plan was to work five days a week in the other employment and work casual days for the respondent. The applicant does not know how the respondent found out she had another full-time position.
12During the month of March 2015, in order to work full-time with the other employer, the applicant took vacation days from her employment with the respondent. That month, the applicant also voluntarily removed herself from the part-time roster and declared herself a casual employee.
13The applicant knew the respondent’s practice of scheduling casual employees when regular employees were on vacation. However, while acknowledging this to be the practice, the applicant felt that due to her many years of service, she would be accommodated to work the shifts she chose. The applicant was scheduled to work on April 11 and 12, 2015.
14The applicant submitted a note to the respondent dated March 31, 2015 suggesting that she reduce her hours of work for a period of six months. The applicant explains that although the note was not signed by a doctor, it was signed by a nurse practitioner. The applicant says that when she delivered the note, the Administrator for the respondent was not available to meet.
15The respondent maintains that it received the note on April 7, 2015, and that the applicant refused to meet. The respondent also observes that the document included a handwritten note signed by the applicant that said: “Due to my doctor recommendation, I have to reduce my hours of work; therefore I will not be able to work at Meadow Park for 6 months”.
16On April 7, 2015, the applicant and the Administrator had a phone conversation during which the applicant confirmed that she wished to be off work for six months. She also acknowledged that she would be working full-time hours at her other employment. The Administrator advised the applicant that in the circumstances, given the lack of medical information and refusal to meet, she was not able to grant her a leave of absence and the applicant was responsible to work the upcoming weekend shift on April 11 and 12, 2015, as scheduled some time prior to the conversation.
17The applicant did not attend work at the respondent’s on April 11 and 12, 2015, but worked for her other employer instead.
18On April 14, 2015, the applicant provided a second note to the respondent,
[19]
20identical to the previous one except for a notation that the need to reduce hours was based on medical reasons (inflammatory process). The note was not authored by a doctor but by the alleged nurse practitioner. The note did not say the applicant was incapable of working for the next six months.
21On April 14, 2015, a meeting took place with the applicant and she was terminated.
22Upon termination, Unifor Local 2458 (“the Union”) on behalf of the applicant filed a grievance dated April 17, 2015.
23On or about May 14, 2015, the Union advised that it was referring the grievance to arbitration. The matter, however, was never formally referred to arbitration since the Union, upon seeking legal advice and after having multiple conversations with the applicant, determined that there was no merit to the grievance and advised the applicant of this formally in a letter dated November 20, 2015.
24The applicant appealed the decision of the Union. In January 2016, she met with the president of the Union and was told that the grievance would not proceed.
25The applicant explains that this is when she began drafting her Application. She alleges that before that, she had contacted the Ontario Labour Relations Board and she was told to wait until a final decision from the Union.
26The applicant states that she waited until October 2016 to file the Application because:
a. She waited the conclusion of the grievance process;
b. She did not know about the one-year period to file an Application.
27In June 2016, the applicant had surgery and recovered for about three to four weeks. She states that she had a hard time but does not rely on that as a reason for not filing on time.
Respondent’s Submission
28The respondent argues that the Application should be dismissed because it has no reasonable prospect of success and because of timeliness.
29The respondent submits that the applicant acknowledges she was terminated not because of a breach of the Code, but rather because she was raising concerns about the perceived lack of resident care provided by the respondent.
30Further, the respondent argues that the applicant was not entirely unable to perform her duties because of a disability, and the applicant admits to that. The respondent notes that there is no suggestion that any of the applicant’s allegations have a basis in prohibited grounds under the Code. There is also no dispute that the applicant was working at her other place of employment during the same time period and intended to continue doing so.
31Irrespective of the above, the respondent submits that the Tribunal ought to dismiss this Application on the basis that it was filed beyond the limitation period set out in Section 34(1)(a) of the Code. While the Tribunal has the discretion to extend time limits, the facts in this case do not support the exercise of such discretion in favour of the applicant for the following reasons: the Application was filed approximately 17 months after the applicant’s termination, and none of the applicant’s reasons for filing late have been accepted by the Tribunal's jurisprudence as warranting an exercise of discretion in favour of the applicant.
timeliness of application
32Section 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.
33Section 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 respondents. 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.
34The applicant indicates in the Application that the last incident occurred on April 14, 2015. I concur that the last incident occurred on April 14, 2015, the date of the applicant’s termination. The Application was filed on October 4, 2016, some 17 months after the last alleged incident.
35The issue I must therefore consider is whether the delay was incurred in good faith. The Tribunal has held that applicants have a “fairly high onus” in providing explanations for delay: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. In determining the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.
36The applicant states that she waited to file until the grievance process had concluded. The Tribunal has held that the fact that a person is pursuing other avenues or waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
37The applicant also says that she did not know there was a time limit to file the Application.
38The Tribunal has consistently said, in Sadahgtani v. Kingston General Hospital, 2012 HRTO 1039 at para. 19, for example, “that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights”. See also Stewart v. Mitten Vinyl, 2010 HRTO 1628.
39I find that the applicant has not established that the delay was incurred in good faith.
40The 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.
41In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code. As a result, the Tribunal need not address whether there is no reasonable prospect that the Application or part of the Application will succeed.
42The Application is dismissed.
Dated at Toronto, this 31st day of July, 2017.
“Signed by”
Josée Bouchard
Vice-chair