HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Doyle
Applicant
-and-
Canarm Ltd.
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Doyle v. Canarm ______________________________________________________________________
APPEARANCES
Deborah Doyle, Applicant ) David F. Little, Counsel
Canarm Ltd., Respondent ) Bryan D. Laushway,
) Counsel
1This involves an Application filed in September, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that she was discriminated against on the basis of her sexual orientation and that she was sexually harassed in the workplace. She also contends that the respondent failed to adequately accommodate her disability.
2The respondent asked the Tribunal to dismiss the Application because the allegations of sexual harassment and discrimination on the basis of sexual orientation relate to incidents that occurred several years beyond the one year period for making an application provided for in the Code. The respondent also argued that another proceeding has appropriately dealt with the substance of the alleged failure to accommodate.
3The Tribunal directed that a hearing be scheduled to address the preliminary issues raised by the respondent. The hearing took place on May 12, 2009.
4At the outset of the hearing, counsel for the applicant advised the Tribunal that the applicant withdrew her allegations regarding the alleged failure to accommodate a disability.
5Thus, the only remaining issues in the Application are the allegations of sexual harassment and discrimination on the basis of sexual orientation. This Decision addresses the timeliness of those allegations.
BACKGROUND
6The applicant has been employed by the respondent since November 1983. In September 2007, she began a medical leave of absence; she is currently in receipt of benefits from the Workplace Safety and Insurance Board (the “WSIB”).
7All of the specific allegations in the Application relate to incidents that occurred between six and 24 years before the Application was filed. Specifically, the applicant states that:
a. from October 18, 1983 to approximately October, 1993 she was sexually harassed by her manager;
b. from January 1994 to approximately January 2004, she was sexually harassed by a co-worker;
c. from 1984 to 1994, her manager and two of her co-workers uttered numerous threats against her; and
d. in 2001, she was again sexually harassed by a co-worker.
DELAY
8Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within one year time of the alleged incident or the last incident in a series. It also gives the Tribunal 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.
9The Tribunal will not 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.
Was the Application Filed in Time?
10The parties agree that, as it relates to specific allegations of sexual harassment and discrimination on the basis of sexual orientation, the Application was not filed in time. The most recent incident complained of occurred in 2001 while some of the other incidents are alleged to have occurred over 24 years before the date the Application was filed.
11Counsel for the applicant argued that the Application was timely because the discrimination was ongoing until September 2007, when the applicant left the workplace to begin a medical leave. While no further specific incidents of discrimination or harassment occurred after 2001, counsel argued that the respondent’s previous treatment of the applicant had created a poisoned work environment, which continued through to September 2007.
12The applicant’s most serious allegations are against the respondent’s plant manager and relate to alleged and repeated forced sexual activity. The applicant urged me to infer from the seriousness of these allegations and the plant manager’s position of authority over the applicant that her work environment with the respondent was “forever poisoned”.
13The applicant gave evidence at the hearing. She indicated that it was difficult for her to continue working for the respondent and that doing so took a personal toll on her.
14Counsel for the Applicant pointed to the following as evidence of ongoing discrimination:
a. in a handwritten statement filed with the Tribunal, the applicant referred to the alleged harassment by the plant manager (which she states took place between 1983 and 1993) and wrote that the manager “later backed off but made it hard at work...”;
b. for at least a ten month period beginning in 2001, the applicant felt ostracized at work because she had complained of sexual harassment; and
c. A workplace accident in 1999 and allegations that the applicant was unfairly denied a promotion in 1998 – 1999 are, counsel submits, further evidence of a poisoned work environment.
15Counsel for the respondent stated that arguments regarding a poisoned work environment were being raised for the first time at this hearing and that there is no evidence before the Tribunal of the applicant’s ongoing concerns about her treatment in the workplace. The respondent argued that the applicant had, in the past, raised issues about workplace harassment and discrimination directly with the respondent and in a timely manner.
16The applicant took a medical leave in 2002, which she states was necessary because of the toxic work environment which existed at the time. With the help of her caregivers, she was able to work through some of these issues and eventually return to full-time work with the respondent in 2003.
17The applicant continued working for the respondent until 2007, when she suffered a reduction in her hearing. The applicant took a two month medical leave in 2007, following which she became eligible for WSIB benefits.
18In this regard, a consultation note dated December 17, 2007 comments that the employer’s alleged insensitivity to the applicant’s hearing loss and request for accommodation reactivated symptoms related to past harassment and abuse in the workplace.
19As I indicated earlier, however, the applicant has now withdrawn allegations that the respondent failed to accommodate the hearing loss disability. Thus, all of the applicant’s evidence regarding workplace toxicity relates to the period beginning in 1983 and ending in 2002.
20While I appreciate that remaining in a workplace for several years after alleged sexual harassment could be extremely difficult, I am not convinced that the fact that harassment occurred in the past would, without further evidence, lead to an inference that the workplace is forever a poisoned one. Even accepting the applicant’s evidence of reprisals and toxicity in the workplace from 1983 to 2002, I am left without evidence that following her rehabilitation and return to work in 2003, the workplace continued to be poisonous. Especially in circumstances where there has been such a considerable lapse of time, I am not prepared to make that inference in the absence of evidence.
21Accordingly, I find that the Application was filed more than one year after the alleged harassment and discrimination occurred. I turn now to whether to it would be appropriate to exercise my discretion under s. 34(2) of the Code.
Was the Delay in Good Faith?
22The applicant testified that she suffers from post-traumatic stress disorder and other mental health issues and that these contributed to her inability to file the Application in a more timely manner. She also stated that, while she had inquired about the possibility of filing a human rights application in the past and had consulted a lawyer in that regard in 1989, she did not initiate proceedings until 2008 because she was concerned that her employer and her co-workers would reprise against her. One of her caregivers, Dr. Au, also noted that the applicant did not initiate a human rights complaint because she was unsure that she could marshal the necessary evidence.
23The respondent argues that the applicant has repeatedly demonstrated that she was capable of making complaints and reporting situations that she felt were unfair. During the material times, she initiated a number of WSIB claims, applied for employment insurance and long term disability benefits and initiated lengthy legal proceedings regarding injuries sustained in a motor vehicle accident in 2002.
24The respondent also points out that the applicant made immediate complaints regarding some of her co-workers and the plant manager, alerting the respondent’s former president and its director of operations to her concerns. The respondent cites Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic School District School Board, 2008 HRTO 424 and Quimado v. S.A. Armstrong, 2008 HRTO 110, and argues that, as in those cases, this applicant had been able to take timely steps in other proceedings and could have also initiated a human rights complaint.
25The medical evidence shows that the applicant is contending with some significant mental health issues. However, the medical documentation provided does not address or provide any opinion as to why the applicant was unable to commence a human rights proceeding before September 2008, especially given that these health issues did not prevent her from initiating proceedings and asserting her rights in other contexts.
26I recognize that, where there are significant mental health issues coupled with serious allegations, it may be challenging for individuals to come forward with complaints under the Code. However, in the circumstances of this Application, where the applicant concedes that she raised many of the same issues directly with the respondent around the time they occurred, I am not satisfied that the applicant was unable to pursue her allegations under the Code in a timely manner or that the delay was incurred in good faith.
27Because of my determination, it is not necessary for me to consider whether there would be any substantial prejudice to any person affected by the delay.
28The Application cannot proceed under section 34(1) of the Code and is dismissed.
Dated at Toronto, this 20th day of May, 2009.
“Signed by”
Michelle Flaherty
Vice-chair```