Tuesday, January 10, 2012

Dorriesfield v. Domtar - A good test case for judicial review?

The Human Rights Tribunal of Ontario just released its decision in the Dorriesfield v. Domtar case, dismissing the application because it was not commenced within the mandatory one year period.

The legislation sets up a two-stage test for relief against the one year limitations period:  An application can only proceed if it can be shown that the delay was incurred in good faith, and that no substantial prejudice can be shown.

Ordinarily, administrative tribunals err on the side of hearing the merits of the case.  The HRTO has gone the other way, imposing a very strict standard for relief against the limitations period.  Dozens, perhaps hundreds, of applications have fallen to this problem since the HRTO became able to accept applications directly 3.5 years ago, and it is exceptionally rare that the Tribunal was satisfied that the delay was incurred in good faith.  (The only case I know of is Lutz v. Toronto, in which the Tribunal had a full hearing on the issue and required Mr. Lutz to lead medical evidence and significant viva voce evidence establishing essentially that he was medically unable to file the application sooner.)

There are also cases where the Tribunal raised the matter of its own initiative then backed off because it was not "plain and obvious" that the delay was not incurred in good faith, still leaving the door open to dismiss the application later after more thorough consideration of the issue, and one, Moffatt v. Northampton Group, where the one-year deadline was missed by only 3 days so the Tribunal decided to delay its consideration of the issue until after mediation.

Put simply, the Tribunal has set the bar extraordinarily high for these matters.  Judicial jurisprudence usually suggests that good faith requires that the person had no ulterior motive, and that if the delay was incurred because of ignorance to one's rights, there must have been no reason for the person to make inquiries about his or her rights.  It isn't always clear what the Tribunal is looking for when they find that good faith has not been established, but it is clear that the Tribunal very closely scrutinizes any reason given for delay, and will find any justification not to accept the legitimacy of the reason.

The Case

In Dorriesfield, the application was filed on April 27 2009, in respect of his discharge from employment on June 27 2007, 22 months after the fact.  One of the real exceptional aspects of the case was that it was filed by the Office of the Public Guardian and Trustee on behalf of Mr. Dorriesfield.  The OPGT became Mr. Dorriesfield's guardian on March 26, 2008.  It is estimated that the OPGT probably became aware of Mr. Dorriesfield's termination from employment in April 2008, and they discussed the matter with Dorriesfield's union in July 2008.  In September 2008, the OPGT tried to encourage the union to reopen the matter to grieve the discharge.

The OPGT spent the following months seeking more information about the dismissal and how Dorriesfield's disability may have been a factor in it, communicating with Dorriesfield's doctors and union counsel.  The union declined to pursue the matter any further in February 2009, following which the OPGT began its internal processes to get approval to apply to the HRTO.

The OPGT argued, among other things, that it was still obtaining medical evidence as late as December 2008, and in the mean time they were trying to pursue other avenues of resolving the issue, through asking the union to reopen the grievance and making other requests of the employer, and therefore the delay was incurred in good faith.

The Tribunal found that the "issue of the applicant's termination...was squarely in issue by April 2008."  (The consequences of that are uncertain; after all, depending on when in April this became true, it may well be that the application was filed within a year afterwards.  The Tribunal went on to consider alternatives, finding that, even if it was reasonable for them not to have acted until they became confident that there were still issues to be pursued in September/October, "the Application was not filed for approximately another seven months".)  The Tribunal disposed of the OPGT's argument regarding its obtaining medical evidence by pointing out that "the time lines...are not suspended while a party gathers evidence in support of their claim".  The Tribunal further noted that it "is settled law that pursuing other avenues of redress is not a good explanation for delay."

My Thoughts

I believe that this decision could be open to judicial review by the Divisional Court, for a couple of reasons:

(1)  As distinct from an individual applicant putting together their case in advance of making an application, when the OPGT is gathering medical evidence to substantiate a claim, it is because they don't have the same innate and internal understanding of the individual's disability that the individual must have.  The OPGT cannot be said to have known that there would have been grounds for an application until it reviewed medical evidence in light of knowing the reasons for termination.  The very nature of the OPGT's mandate precludes one from assuming that they will have a fulsome understanding of the issues from an interview with the individual involved, and it is prudent and reasonable to expect them to do their due diligence before assuming that there was a Code breach.

(2)  The Tribunal's treatment of the delay after the OPGT can be said to have been alive to the Code issues is questionable.  What is the relevance of the seven month delay from September/October (if one supposes that this was when it was reasonable for the OPGT to start considering an Application) to the actual filing of the Application?  Why is seven months too long, and what duration would not have been too long?

I pose a thought experiment:  I am dismissed on grounds which are discriminatory, and on my way home I am so distraught that I get into a car accident, and am comatose for 366 days before waking up.  Clearly, if I file an Application the next day, the delay is incurred in good faith.  But if, during my recovery, I move a little bit more slowly to pull together my recollection of the matters in issue, consult legal counsel, and [gasp] try to informally resolve matters with my employer, and don't file the application for several more months, at what point is the delay no longer incurred in good faith?  The Tribunal here seems to be suggesting a test akin to setting aside a default judgment, that you have to move as quickly as you possibly can once the one-year period is up.  But the results of this are not fair, just, reasonable, or good public policy:  It means that, because I was comatose, I am in a much worse position than somebody who had not suffered such a tragedy; I am not in a position to duly deliberate upon my options; I am not in a position to appropriately prioritize other matters; and furthermore I am forced into a position where I must commence litigation in respect of a matter which could quite conceivably be resolved informally without litigation.

The Tribunal seems to use the one-year limitation period as a way of trying to manage their immense case load.  They dismiss what they can at preliminary stages.  Yet if one really looks at the assortment of reasons they use in this case for finding that the delay was not incurred in good faith, they are essentially sending a message to the OPGT that it should have immediately taken steps to commence an application, without (a) satisfying itself that an application had a reasonable prospect of success or (b) attempting to determine whether or not the matter could be otherwise resolved or settled without formal Tribunal proceedings.  If the OPGT and others took this message to heart, the consequence would be the filing of large numbers of frivolous applications and applications which could otherwise have been settled.

A more cogent and reasonable way of approaching the question of whether or not delay is incurred in good faith is by examining the reasons for the delay at any given point in time, and stopping the one-year clock through any period in which a good faith delay is incurred.  Thus, after I wake up from my coma, I have one year.  If my one-year coma was commenced in the tenth month after the Code breach, then perhaps I should only have two months left after waking up and resuming my daily activities.  (Though, if one supposes that I woke up and remained incapable, then after an organization such as the OPGT picked up my affairs from scratch, it's fair to say that their clock shouldn't be started with 10 months elapsed.)

In other words, when the OPGT first became aware of the fundamental facts underlying the application, that should have started the one year clock; not put them on an "asap" schedule without the ability to investigate or negotiate the issues involved.  Understand the distinction I'm drawing:  There's a difference between saying "You shouldn't have missed the 12-month deadline just because you spent the whole year trying to muster your case and negotiate with the respondent" and saying "After missing the 12-month deadline for good reasons, you shouldn't have taken any time to muster your case or negotiate with the respondent."

The narrative of this case involves the OPGT taking reasonable steps forward at every stage, ultimately commencing an application approximately a year after they first became aware of the fact of the termination of employment, approximately seven months after they can be confidently said to have been aware that discrimination was a live issue, approximately four months after they obtained the medical evidence necessary to satisfy themselves that the application could be successful, and approximately two months after they reasonably concluded that an application was necessary.

If there's one thing that absolutely cannot be said to be missing in this timeline, it's "good faith".


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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