Patterson v. Hamilton Health Services-Chedoke, 2009 HRTO 2158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Patterson

Applicant

-and-

Hamilton Health Services-Chedoke, Sylvia Fung,

Sue Smith, Marita Tonkin and Gita Sobhi

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 11, 2009

Citation: 2008 HRTO 2158

Indexed as: Patterson v. Hamilton Health Services-Chedoke

1This Interim Decision addresses the respondents’ Request for an Order during Proceeding seeking the dismissal of the Application on the basis of delay and/or clarification of the scope of the Application. The Hearing of this Application is scheduled for February 10, 2010.

2The respondents submit that that many of the allegations filed in the original complaint are more than one year old. In addition, the applicant filed a statement of additional facts in which she alleges facts that post-date the compliant and attempts to expand the scope of the complaint.

3In the original complaint dated November 21, 2005, the applicant alleged that the respondents breached Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) by discriminating against her on the basis of race, ethnic origin and disability. The complaint alleges that the applicant experienced racially insensitive comments from May 2003, when she was first hired as a Drug Information Pharmacist until she left work in April 2005 as a result of psychological disabilities due to work related stressors. The complaint also references and incorporates further allegations as set out in a May 5, 2005 letter.

Extension to file response to the applicant’s statement of additional facts

4The respondents’ statement of additional facts and response to remedy and disclosure of arguably relevant documents was due on December 7, 2009.

5On December 3, 2009, the respondents filed a Request for Order seeking the above mentioned orders. At the same time the respondents sought an extension of time to file their statement and make disclosure. The applicant opposed the extension.

6I have reviewed the materials and direct that an extension be granted. Depending on the outcome of the respondents’ Request for Order, the respondents’ obligation will be significantly affected. I determined that it would be fair, just and expeditious to determine the Request prior to requiring the respondents to file their materials. Although the hearing on the merits is scheduled to begin on February 10, 2010, there is still sufficient time to issue this Interim Decision prior to the hearing.

Delay

7While the initial complaint raises allegations of discrimination from May 2003 until the date of the complaint of November 15, 2005, I find that the nature and substance of the allegations form a pattern of ongoing alleged harassment, poisoned work environment and discrimination such that the application should not be considered out of time within the meaning of section 34(1) of the Code.

Expansion of the Subject Matter of the Application

8In the statement of facts and remedy filed November 2, 2009, the applicant raised allegations during the time-frame of the complaint and allegations which post-date the complaint.

9The applicant was represented by counsel from early in the process. On May 31, 2005, counsel for the applicant raised allegations of discrimination. These were not repeated in the November 2005 complaint. The respondents assert that the May allegations therefore do not form part of the Application.

10It is important to note that the Commission’s process at the time the complaint was filed requested the applicant to limit her complaint to two pages. As I stated earlier, the applicant specifically referenced the allegations in the May 31, 2005 letter in her complaint. In these circumstances, I am satisfied that the allegations set out in the May 31, 2005 letter from counsel form part of the subject matter of the present Application.

New ground of discrimination

11The applicant raised allegations of discrimination on the ground of sex for the first time in November 2009, almost four years after the initial complaint. The applicant has not provided an adequate explanation for failing to raise these facts or this ground previously I am satisfied that the applicant has not demonstrated the delay was incurred in good faith and the applicant is accordingly barred by section 34(1) from raising these allegations at this time and in this proceeding. In my view, the only paragraphs affected may be paragraphs 11 and 13; however, I am not clear at this stage whether they are being relied upon for the alleged racial discrimination as well, so these will not be struck. However, the ground of sex is struck.

12The applicant submitted that the respondents have not met the standard for establishing prejudice as set out in the case of Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. This case is not applicable as I am not addressing a request to stay the proceeding on the basis of delay, but rather a request to apply a statutory provision regarding the time for filing a complaint.

Allegations Post-Dating the Complaint

13The applicant’s statement of additional facts dated November 2, 2009 refers to facts that post-date the complaint. The transitional provisions of the Code indicate that the subject matter of the original complaint is the subject matter of the transitional application.

14In the November 2009 statement, the applicant asserts that since April 2005 the respondents interfered with her healing process by their demands for proof of disability; they also refused to provide her with accommodation, and insisted on raising performance issues which threatened her employment. This is set out in the original complaint, and these allegations are in my view, continuation of the original dispute between the applicant and the respondents and ought to be considered part of the subject matter of the present Application.

15In September 2005, the applicant wrote to the respondents through her counsel and advised her physician could not provide the information requested and that she was pursuing a claim for disability benefits. There are detailed allegations regarding her dispute with the insurance company. The allegations relating to her claim for disability benefits do not form part of this Application. In my view those paragraphs that relate solely to the dispute with the insurer and are struck are: 42, 43, 45, 46, 47, 48, 49, 50, 51, although other paragraphs reference her claim for benefits and the medical documentation to back it up they are left to form part of the narrative, and also to establish the alleged disability at the time.

16The November 2009 statement makes reference to the applicant’s subsequent employment with another institution and her resignation from the respondents, her inability to obtain a reimbursement of her annual licensing fees in February 2009, the amalgamation of the respondents and her current employer in March 2009 and consequences of that amalgamation. These events do not form any part of the present Application, although the resignation and subsequent employment may be relevant to the issue of remedy.

17Having regard to the complexity of the issues relating to liability, I find that this is an appropriate case to bifurcate the hearing to hear the evidence of liability first. Accordingly, many paragraphs following the date of resignation are not relevant at this stage: 52, 53, 54, 55, 56, 57 and 58.

18This hearing will proceed as scheduled on February 10, 2010.

19The respondents are directed to file their statement of additional facts and response to remedy and to make disclosure in accordance with the subject matter of the Application as established by this Interim Decision within 14 days of the date of this Interim Decision.