Application 11 months past deadline from last instance of discrimination
The Ontario Human Rights Tribunal has dismissed a worker’s complaint alleging disability discrimination and reprisal in employment due to a late filing beyond the one-year limitation period stipulated in the Ontario Human Rights Code.
The worker’s supervisor asked her to attend an investigation meeting related to allegations of misconduct on July 8, 2019. The worker refused to participate in the investigation without union representation and, the same day, began a medical leave of absence. She said that workplace stressors were affecting her disability of chronic pain.
After the worker went on medical leave, the supervisor sent her emails indicating that she would have to attend an investigation meeting before she returned to work. According to the worker, the supervisor sent several emails that she considered harassing, although she could only show one email sent on July 28 stating that the supervisor tried to connect with the worker and she would be “de-scheduled from work until you meet with me.” The email also stated that a meeting had been scheduled for July 30 and the union had secured a steward for it.
The worker remained off work, making a few more attempts to arrange a return to work over the next four years, but the employer reiterated that she had to attend an investigation meeting before returning. The employer sent emails with deployment and training opportunities with the same requirement.
Grievance, complaint to employer
The worker filed a grievance but she became frustrated with the union’s efforts after the employer denied it at various steps. She decided to file a complaint with the employer’s human rights office, which she did in January 2022 and March 2024. However, the office said it couldn’t intervene because the worker was pursuing the same matters through grievance proceedings, as stipulated by the employer’s human rights and anti-discrimination policy.
On Dec. 22, 2021, the worker filed an application with the tribunal alleging disability discrimination and reprisal in employment. She claimed that the employer’s emails during her medical leave requiring her to attend an investigation meeting were discrimination and the refusal to return to her to work was a reprisal.
The tribunal advised the worker that her application was beyond the one-year limitation period specified for such complaints under the code, so she would have to prove a good-faith reason for the delay, as stipulated by the code. The last alleged incident of harassment was July 28, 2019, when the worker was informed via email that she had been removed from the work schedule and couldn’t return until an investigation meeting took place. Even with a suspension of limitation periods during the pandemic from March to September 2020, the deadline for filing an application would be January 2021, said the tribunal.
The worker argued that there were additional instances of discrimination, including her attempts to return to work between 2020 and 2024, and an email on June 6, 2020, in which another supervisor reiterated the employer’s decision that she had to attend an investigation meeting before coming back.
The worker also claimed that chronic pain from which she suffered further delayed her human rights application.
Employer’s reiteration of position not new discrimination
The tribunal disagreed with the worker, finding that all the examples of communication the worker cited were reiterations of the employer’s positions and didn’t constitute “fresh steps” by the employer that added to the discrimination. The email of July 28, 2019, set out the “consequences” of the employer’s decision and was the latest incident of alleged discrimination, the tribunal said, adding that the employer’s denial of the worker’s grievances and the other supervisor’s email in June 2020 also weren’t “fresh steps.”
The tribunal also noted that the worker pursued grievance processes in a timely manner but didn’t demonstrate why she couldn’t have also filed her human rights complaint within the limitation period. Instead, it appeared she only decided to do so when she grew disenchanted with the grievance process, said the tribunal.
As for the worker’s chronic pain, she presented no medical evidence to support her claim that the disability “was so debilitating” that it prevented her from pursuing her human rights in a timely manner, the tribunal said.
The tribunal acknowledged the worker’s status as a self-represented litigant but noted that this didn’t explain the delay, particularly since she considered filing with the tribunal as early as June 2020.
Noting that there was a “high bar” for providing a good-faith explanation for not filing a timely human rights application, the tribunal dismissed the worker’ application. The worker failed to provide a sufficient explanation for the delay and the limitation period couldn’t be extended, said the tribunal.
