Rosario Boncori v. TRW Canada Limited, 2009 HRTO 564

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosario Boncori

Applicant

-and-

TRW Canada Limited

Respondent

case Resolution Conference DECISION

Adjudicator: Mark Hart

Date: May 4, 2009

Citation: 2009 HRTO 564

Indexed As: Boncori v. TRW Canada

APPEARANCES BY

Rosario Boncori, Applicant ) Self-represented

TRW Canada Limited, Respondent ) Michael Failes,

) Counsel )

1This Case Resolution Conference Decision (CRC Decision) relates to the issue of whether the remaining portions of the applicant’s Application which were not dismissed as a consequence of this Tribunal’s CRC Decision 2008 HRTO 178 (the “October 2008 decision”), should be dismissed as falling outside the one year time limit set out in s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). This CRC Decision also will address the applicant’s request for reconsideration of the October 2008 decision.

BACKGROUND

2The Application in this matter was filed on July 20, 2008 and pertains to a complaint that had been filed with the Ontario Human Rights Commission on January 9, 2007 alleging that the applicant had experienced discrimination in employment because of his disability and reprisal.

3In the October 2008 decision the Application was dismissed in part pursuant to s. 45.1 of the Code, on the basis that part of the subject-matter of the Application had been appropriately dealt with by an arbitration proceeding. However the remaining part of the Application, namely paragraphs 3 and 7 of the original complaint, was found not to arise from the same facts and to involve different issues than were addressed in the arbitration proceeding.

4The allegations as set out in paragraphs 3 and 7 of the complaint allege that the applicant experienced harassment by his supervisor when working in the RS Socket Operator position and that this harassment was not appropriately dealt with by management.

5The alleged harassment appears to have occurred in the period leading up to June 2004, when the applicant was given a verbal warning related to starting and stopping times, and culminated in the applicant’s three day suspension in September 2004 when he refused to attend a meeting to address his absenteeism. The applicant pursued his harassment allegations through correspondence to various members of management during the period from June to October 2004.

6On October 12, 2004, the applicant was advised that an investigation into his allegations would be conducted. This investigation found that there were no factual grounds for the applicant’s allegations. A summary of the investigation dated July 26, 2005 was provided to the applicant, to which he responded by letter dated September 26, 2005. The applicant’s complaint to the Commission, which raises the harassment allegations and management’s failure to appropriately deal with them, was filed on January 9, 2007, over two years after the underlying incidents of alleged harassment and almost a year and a half after the applicant received the results of the investigation.

7This Application was filed with the Tribunal pursuant to s. 53(3) of the Code, which is part of the “transition provisions” that address the transfer of complaints filed with the Commission to the new process at the Tribunal. These transition provisions state that the new Part IV of the Code applies to applications filed under the transition provisions: see s. 53(6). The new Part IV of the Code requires that an application be filed within one year of the last incident to which the application relates (ss. 34(1)(a) and (b)) and also gives the Tribunal a discretion to accept an application after the expiry of the one year time limit, 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 (s. 34(2)).

8In these circumstances, the Tribunal requested submissions in writing from the parties on the following issues:

1. Do the provisions in ss. 34(1)(a) and (b) and 34(2) apply to a transition application filed under s. 53?

2. If they do, should the one year period for a transition application be calculated from the time that the application is filed or from the time of the filing of the underlying complaint upon which the application is based?

3. Was the Application filed within one year after the last incident to which it relates?

4. In calculating the time period, can or should the Tribunal consider the harassment allegations separately from the other allegations in the Application, which have now been dismissed?

5. If the Application was filed beyond the one year time period, was this delay incurred by the applicant in good faith?

6. If the Application was filed beyond the one year time period, would any substantial prejudice result to any person affected by the delay if the Tribunal allowed the remainder of the Application to proceed?

9All parties filed written submissions in response to the Tribunal’s request. Due to the possibility that the Application might be dismissed for delay a CRC hearing was held on March 9, 2009 to hear oral submissions from the parties. At the hearing, the applicant raised the issue of a second and subsequent investigation of the harassment allegations having been conducted by the respondent, and the parties were invited to make written submissions on this matter as the information relevant to this investigation was not available at the hearing. Written submissions were received from the applicant and the respondent on this issue.

10In addition, in his correspondence dated November 23, 2008, the applicant also requested that the Tribunal reconsider its October 2008 decision, particularly in relation to the Tribunal’s decision to dismiss the allegation in paragraph 1 of the complaint, which relates to an incident that is alleged to have occurred in January 2007.

REQUEST FOR RECONSIDERATION

11The applicant has requested that the Tribunal reconsider its October 2008 decision, particularly in relation to the Tribunal’s decision to dismiss the allegation in paragraph 1 of the complaint. The allegation in that portion of the complaint is that on January 3, 2007, an occupational health nurse at the respondent company informed the applicant that his medical file was unavailable, as it was with Human Resources. This nurse is alleged to have told the applicant that 99% of the clinic’s decisions were made by individuals in Human Resources and that medical documents sent by the Workplace Safety and Insurance Board to the respondent company would be held in the Human Resources file and not necessarily forwarded to the applicant’s medical file. The applicant’s complaint was filed with the Ontario Human Rights Commission six days after this alleged incident.

12While the Tribunal’s Rules of Procedure for Section 53(3) Applications, which were in force at the time the applicant’s request for reconsideration was made, did not expressly provide for the ability of an applicant to request reconsideration, this Tribunal has held that reconsideration was nonetheless available to such applicants. In any event, the current Rules of Procedure for Transitional Applications which are now in force do expressly provide for reconsideration pursuant to Rule 25.

13Rule 25.5 provides that a request for reconsideration will not be granted unless the Tribunal is satisfied that

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

14In this instance, there are no new facts or evidence being submitted by the applicant, the applicant did fully participate in the hearing, and there is no allegation of an alleged conflict with established Tribunal jurisprudence. As a result, the determination of the applicant’s reconsideration request comes down to the issue of whether there are other factors that outweigh the public interest in the finality of Tribunal decisions.

15No such factors exist in this case. While the arbitration proceeding did not expressly address the allegation raised in paragraph 1 of the applicant’s complaint, this allegation is inextricably linked to the applicant’s medical and accommodation issues that were ongoing at the time of his alleged discussion with the nurse. I saw no reason or basis to hive this one allegation off from the primary accommodation issue, as I saw it very much as a secondary or subsidiary issue. As a result, I am not prepared to alter my original decision in this matter.

DELAY

Do the provisions in ss. 34(1)(a) and (b) and 34(2) apply to a transition application filed under s. 53?

16Section 34(1) and (2) of the Code provide as follows:

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.

34(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.

17Transition applications are applications that relate to complaints that had been filed with the Ontario Human Rights Commission prior to June 30, 2008 and are dealt with pursuant to Part VI of the Code. Essentially, during the first six month period following June 30, 2008, a transition application could be filed with the Tribunal pursuant to s. 53(3) of the Code in order to have access to a particularly expeditious process, or could be filed pursuant to s. 53(5) of the Code during the period from January 1 to June 30, 2009.

18Section 53(6) of the Code states that the new Part IV of the Code applies to an application made under sections 53(3) or 53(5). Section 34 is in the new Part IV of the Code.

19The respondent takes the position that the statutory language makes it clear that section 34 applies to transition applications. I agree. However, in my view, the provisions of Part IV need to be adapted for the purpose of transition applications. For example, a person or organization may not be able to file a transition application on behalf of another person, though this is provided for in s. 34(5), and the Commission may not be able to intervene as of right in a transition application (and particularly in an application under s. 53(3)), though this is provided for in s. 37(2).

If they do, should the one year period for a transition application be calculated from the time that the application is filed or from the time of the filing of the underlying complaint upon which the application is based?

20There are two possible approaches here. The first approach, which is advocated by the respondent, is that the one year period should be calculated from the time the application is filed and that the passage of time between when the underlying complaint was filed and when the application was filed should be regarded as having been incurred in good faith. As a result, any issue regarding the applicant’s good faith would relate to the time period from the last incident until the time the complaint was filed.

21The problem with this approach is that, if it were adopted, virtually every transition application would fall afoul of s. 34(1)(a) or (b), as in the great majority of cases, more than a year would have elapsed since the last incident by the time the transition application was filed. This would subject applicants in transition applications to potential dismissal of their applications for delay even if they had taken steps to file their complaint with the Ontario Human Rights Commission in a timely manner in accordance with the human rights system as it existed at that time.

22In my view, the better approach is to interpret the phrase “apply to the Tribunal” in s. 34(1)(a) and (b) in the context of transition applications to refer to the date that the underlying complaint was filed with the Commission in accordance with the then existing human rights system, particularly since all that is required for the initial filing of a transition application is for the applicant to file the underlying complaint together with a brief form that largely contains administrative information.

Was the Application filed within one year after the last incident to which it relates?

In calculating the time period, can or should the Tribunal consider the harassment allegations separately from the other allegations in the Application, which have now been dismissed?

23These two issues need to be addressed together. In my view, in the circumstances of this specific case, two distinct sets of allegations were raised in the application: the first set of allegations relates to the issue of whether the applicant’s disability could have been accommodated in the RS Socket Operator position; and the second set of allegations relates to the issue of whether the applicant was harassed by his supervisor because of his disability and whether management took appropriate steps to address this issue.

24In this case, it is not enough for the applicant to say that his complaint was filed within one year of the last incident pertaining to the accommodation issue, particularly where those allegations already have been dismissed as having been appropriately dealt with in another proceeding and where the harassment allegations were not dismissed by this Tribunal on the express basis that they were distinct from the accommodation issue. In these circumstances, in my view, the one year period should be calculated from the last incident as it pertains to the harassment allegations.

25The allegations of harassment pertain to events that occurred during the period from June to September 2004. In October 2004, the respondent notified the applicant that an investigation into the allegations would be conducted. However, the results of the investigation were not shared with the applicant until July 26, 2005. The applicant responded to the investigation report by letter to the respondent company dated September 26, 2005, in which the applicant takes issue with the investigation findings and the investigator’s failure to interview key witnesses.

26The respondent subsequently directed that a second investigation be conducted by a Human Resources Manager from the respondent’s parent company in the United States. This individual attended at the respondent’s plant on November 7 and 8, 2005 to conduct interviews with nine witnesses, including the applicant and witnesses who were supportive of the applicant’s position. No report, however, was prepared by this individual until October 30, 2006, almost one year later, perhaps in response to the applicant’s letter dated August 14, 2006 in which he expressly raises the matter of the November 2005 investigation and states that he is still awaiting a response. The respondent states, however, that the October 30, 2006 report was never disclosed to the applicant, because the report also addressed the accommodation issues that were the subject of ongoing litigation through the grievance arbitration procedure.

27In my view, the harassment allegations raised by the applicant include not only that he experienced harassment by his supervisor, but also that management failed to take appropriate steps to address the alleged harassment. As a result, both the underlying harassment allegations and the issue of the steps taken by management to address them form a “series of incidents” within the meaning of s. 34(1)(b).

28Paragraph 3 of the applicant’s complaint expressly references his August 14, 2006 letter in follow-up to his October 6, 2004 letter in which he raises the harassment allegations. As indicated above, the August 14, 2006 letter on its face is a follow-up to the investigation that was conducted in November 2005. In my view, at the very least, the applicant’s allegations regarding management’s failure to appropriately address and respond to the harassment allegations extends for a reasonable period of time following the November 2005 investigation during which the applicant reasonably might have expected to be informed as to the outcome of the investigation. While I am not necessarily prepared to find that a reasonable period of time extends all the way to August 14, 2006 when the applicant sent his follow-up letter, which is some nine months after the November 2005 investigation, I do not think it unreasonable for the applicant to have expected to be informed of the outcome of the November 2005 investigation within the next two months. As a result, the failure to advise the applicant of the outcome of the November 2005 investigation into the harassment allegations within a reasonable period of time would put the last alleged incident as it related to the harassment allegations within the one year period prior to the filing of the applicant’s complaint on January 9, 2007.

29The respondent takes the position that at the time of the November 2005 investigation, the applicant focused on the failure to accommodate his work restrictions, the failure to make his ergonomic chair available and his dissatisfaction with the occupational therapist who had assessed the workplace. There is no doubt that the applicant raised all of these matters as part of the November 2005 investigation, and that all of these matters relate to the accommodation issues that already have been dismissed as having been appropriately addressed through the grievance arbitration procedure.

30However, it is clear from the October 30, 2006 report that the focus of the November 2005 investigation was the harassment allegations that had been raised by the applicant against his supervisor. This is made clear throughout the report, including from the nature of the documents the investigator reviewed, to the summary of her witness interviews, to her summary of the evidence and to her ultimate conclusion that the supervisor was enforcing and communicating rules and discipline and that this is not harassment. Whether or not the investigator’s conclusion is correct is a matter ultimately to be determined by this Tribunal at a hearing. But it is clear from her report that the November 2005 investigation was a continuation of management’s effort to respond to the applicant’s allegations of harassment, which the applicant asserts were inadequate.

Was this delay incurred by the applicant in good faith?

Would any substantial prejudice result to any person affected by the delay if the Tribunal allowed the remainder of the Application to proceed?

31As a consequence of my conclusion that the relevant time period by which to measure the one year period for a transition application is from the date of the last incident to the date that the underlying complaint was filed and my conclusion that the underlying complaint was filed within one year of the last incident pertaining to the harassment allegations, the Application as it pertains to the harassment allegations will proceed and it is not necessary for me to address the questions of good faith or substantial prejudice.

ORDER

32The Tribunal makes the following order:

1. The applicant’s request for reconsideration of the October 2008 decision is denied;

2. By no later than 30 days following the date of this CRC Decision, the applicant shall:

i.deliver to the respondent and file with the Tribunal, a statement of any additional facts he intends to rely upon relating to the harassment allegations and a description of the remedies he seeks arising out of the harassment allegations, and

ii.provide disclosure by delivering to the respondent of a copy of all arguably relevant documents in his possession relating to the harassment allegations (except where privilege is claimed);

3. By no later than 45 days following the date of this CRC Decision, the respondent shall:

i.deliver to the applicant and file with the Tribunal, a statement of any additional facts it intends to rely upon relating to the harassment allegations and its position with respect to the requested remedies, and

ii.provide disclosure by delivering to the applicant of a copy of all arguably relevant documents in its possession relating to the harassment allegations (except where privilege is claimed);

4. Within 10 days of the date of this CRC decision, the parties shall provide all of their available dates for a two day Case Resolution Conference regarding the harassment allegations in July or August 2009.