Klein v. Toronto Zionist Council, 2009 HRTO 241

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jordana Klein

Applicant

-and-

Toronto Zionist Council

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: March 4, 2009

Citation: 2009 HRTO 241

Indexed as: Klein v. Toronto Zionist Council

Appearances

Jordana Klein, Applicant ) On Her Own Behalf

Toronto Zionist Council, Respondent ) Gary L. Wiseman, Counsel )

1This is an Application filed by the applicant, Jordana Klein, on August 18, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In the Response, the respondents ask the Tribunal to dismiss the Application because another proceeding has appropriately dealt with the substance of the Application. The respondents also ask the Tribunal not to deal with the Application because of the delay in filing it, and to disregard documents the respondents allege the applicant has improperly put before the Tribunal.

3The Tribunal directed that an oral hearing be scheduled to hear the submissions of the parties on the preliminary issues raised by the respondents [see Klein v. Toronto Zionist Council, 2008 HRTO 204]. The Tribunal also issued directions to the parties on the filing of any documents and case law they intended to rely on during the hearing of the preliminary issues. This hearing took place on February 9, 2009.

Background

4The following facts are based on the materials filed by the parties and submissions made during the preliminary hearing.

5The applicant was employed for seven consecutive years as a seasonal employee at Camp Shalom, a summer children’s camp operated by the respondent. The applicant’s mother was the Executive Director of the camp and directly supervised the applicant. The applicant’s 2006 contract provided for a payment of $2,500 for her services as Tuck Shop Supervisor for the period June 23, 2006 to August 23, 2006.

6The summer of 2006 was the final year the applicant worked at Camp Shalom. On November 28, 2006, the applicant received a letter signed by Yossi Winter, President of the Toronto Zionist Council, advising the applicant that her services would not be required at Camp Shalom for the summer of 2007.

7On the same day that the applicant received Mr. Winter’s letter, the applicant’s brother, who was also a long-term seasonal employee with Camp Shalom, received a similar letter. Less than six months later, on May 3, 2007, the applicant’s mother was terminated from her long-time employment with the camp.

8The applicant alleges that she was terminated as part of a deliberate campaign by the respondent to drive out all members of her family from employment with Camp Shalom. She argues that, but for her relationship to her mother, she would not have lost her job. This, she argues, amounts to a discriminatory breach of the Code on the ground of family status.

9The respondent argues that the applicant was neither terminated nor discriminated against. It relies on the seasonal, fixed-term nature of the employment contract, and the fact that there is no guarantee of re-employment in subsequent summers. It states that as a result of dwindling camper enrolment, the Camp’s revenues and workload decreased, and staff re-structuring was necessary.

10The respondent further responds that it fulfilled all of its legal obligations under the contract with the applicant, and that any outstanding issues were finally settled in a deal reached between the parties in February 2007. It relies on that previous settlement, and on the applicant’s delay in commencing this proceeding, to request that the Tribunal dismiss the Application.

Issues

11This Decision addresses the following issues:

(i) Should the Tribunal dismiss the application, pursuant to section 45.1, because another proceeding has appropriately dealt with the substance of the Application?

(ii) Has the applicant brought this Application within one year after the last discriminatory incident, pursuant to section 34(1)? If not, should the Tribunal exercise its discretion to accept the Application, pursuant to section 34(2)?

(iii) Is there any reason under the Code or the common law to prevent the applicant from relying on documents obtained in another legal proceeding in this Application?

The respondent’s position

12The respondent asks that the Tribunal dismiss the Application because another proceeding has appropriately dealt with the substance of the Application. In support of this request, the respondent points to a complaint the applicant filed on January 25, 2007 with the Ministry of Labour alleging contraventions of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA”) stemming from an alleged non-payment of wages. In particular, the respondent notes that the applicant voluntarily withdrew her ESA complaint in February 2007 after she reached a settlement with the respondent.

13The respondent also asks the Tribunal not to deal with the Application because of the delay in filing it. It argues that the applicant was represented by counsel at the relevant time and had ample opportunity to raise any allegations of discrimination in the context of her negotiations about the ESA complaint. The respondent points to a letter dated January 3, 2007, in which then-counsel to the applicant demanded that a payment of $500 be made to the applicant in fulfilment of her employment contract, and threatened to file an ESA complaint. The letter did not allege any breaches of the Code. The respondent asks the Tribunal to draw an adverse inference from the omission, and to conclude that, under the advice of counsel, the applicant knowingly chose not to complain of discrimination within the required timeframe and should therefore be prevented from now raising it.

14Finally, the respondent objects to the applicant’s reliance on documents that were disclosed as part of litigation between the applicant’s mother and brother, respectively, against the Toronto Zionist Council. It cites the common law rule concerning “deemed undertakings”, codified in Rule 30.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The respondent argues that, pursuant to this Rule, any information obtained through the discovery process in a civil trial is subject to a deemed undertaking by the parties and their counsel not to use such evidence or information for any purposes other than those of the proceeding in which the evidence was obtained. The respondent maintains that the applicant’s claim of discrimination relies on the improper use of information from another proceeding and should therefore be dismissed.

The applicant’s position

15The applicant argues that this Application addresses issues that are materially different from the complaint she previously initiated and resolved with the respondent. She argues that the ESA matter involved the enforcement of an employment contract, and that any entitlements under the Code were not contemplated or addressed in either the complaint or the settlement of the complaint. She maintains that she never agreed to sign a release, and therefore is not barred from pursuing remedies under the Code.

16Regarding the issue of timeliness, the applicant relies on the discoverability doctrine to maintain that she did not have knowledge of the material facts to identify a breach of the Code until she was alerted to information contained in documents obtained in separate litigation by her mother and brother.

17The applicant points to two documents in particular. First, she relies on minutes of a meeting held by the Board of Directors of the respondent in September 2006, which the applicant alleges support her claim that she was discriminated against on the basis of family status. This document was obtained in February 2008 as part of mediation disclosure in her mother’s civil action against the respondent. Secondly, the applicant obtained a copy of an internal memo which she alleges demonstrates that the respondent had initiated an investigation into her job performance, contrary to its claim that she was not called back due to lack of work. This document was obtained in July 2008 as part of documentary production in her brother’s civil action against the respondent.

18The applicant therefore argues that when she filed her Application on August 18, 2008, she was well within the one-year timeframe from the date that she discovered the respondent’s alleged breaches of the Code, whether using February 2008 or July 2008 as the point of reference.

19Finally, with regard to the respondent’s invocation of the rule of deemed undertakings, the applicant submits that the Tribunal is not bound by the Rules of Civil Procedure and urges it to disregard this rule in the present case. She notes that the document is not protected by any form of common law privilege. She further argues that the respondent waived any putative privilege claims when it produced the documents, which contain personal information about the applicant, in the civil proceeding without her knowledge or consent, and without protecting her privacy.

DECISION

Delay

20Section 34 of the Code allows the Tribunal to consider applications alleging infringements of rights to be made within a one-year timeframe from the date of the alleged breach. This was one of the amendments that went into force on June 30, 2008, extending the limitation period from six months under the old Code. It also preserves the Tribunal’s discretion to accept late applications in certain circumstances:

34.(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.

21Under s. 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in s. 34(2) exist. Thus, the factors that will determine my analysis are (1) good faith of the applicant; and (2) substantial prejudice to any person affected.

Good Faith

22The applicant maintains she discovered the alleged breach of the Code as a result of viewing documents produced to her mother and brother more than a year after the termination of her employment. Yet, at the same time, the applicant states she long earlier discerned a pattern that gave rise to a concern that members of her family were being purged from employment with the respondent. This pattern was apparent to her in the timing of her and her brother’s alleged termination, and confirmed in her mind with her mother’s subsequent termination.

23What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

24Consequently, I find that the applicant’s knowledge and awareness of the facts giving rise to the alleged breach of the Code crystallized in her mind if not in November 2006, when she and her brother were told their services were no longer required, then at least by May 3, 2007 when her mother was terminated. In bringing her Application more than 20 months after the alleged discrimination, and at least 15 months after it was reasonably discovered, she ran afoul of the extended limitation period introduced in the amended Code. She has neglected to provide a reasonable explanation for her delay.

25The applicant has therefore failed to establish the good faith necessary for the Tribunal to accept her late Application.

26There was no evidence before me concerning the issue of prejudice, and the respondent made no submissions in that regard. However, in the light of my finding regarding good faith, it is not necessary for me to consider whether there would be any substantial prejudice to any person affected by the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424 at para. 28.

Other Issues

27Given my findings above, it is not necessary to deal with the issue of whether another proceeding has appropriately dealt with the substance of the Application pursuant to s. 45.1. I note that in the very recent decision of the Tribunal in Rockley v. Cradock, 2009 HRTO 143 released February 9, 2009, the Tribunal found that the requirements of s. 45.1 were not satisfied where the question of discrimination was in no way a part of the ESA claim, payment for alleged statutory entitlements owing was made pursuant to a settlement agreement, and a full and final release was not executed.

28Given my findings with respect to delay, it is not necessary for me to rule on the admissibility of evidence produced in other proceedings.

ORDER

29I find that the Application has been filed late, and the circumstances in section 34(2) do not apply to permit the Application to proceed. Accordingly, the Application is dismissed.