Nurse-Bernett v. Kerry’s Place Autism Services, 2010 HRTO 1223

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa-Marie Nurse-Bernett

Applicant

-and-

Kerry’s Place Autism Services

Respondent

interim DECISION

Adjudicator: Mark Hart

Date: June 1, 2010

Citation: 2010 HRTO 1223

Indexed as: Nurse-Bernett v. Kerry’s Place Autism Services

1This is an Application filed on June 26, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on October 12, 2004.

2The purpose of this Interim Decision is to address two matters: (1) the request by the respondent to dismiss certain allegations in the underlying complaint as untimely; and (2) the request by the applicant to add Daniel Smith as a personal respondent.

Request to Dismiss for Delay

3The respondent is a not-for-profit organization that deals with persons with Autism Spectrum Disorder. The applicant commenced her employment with the respondent in 1997.

4In her complaint, the applicant alleges that she experienced discrimination because of her race and colour in relation to her lack of success in applying for certain internal positions, some at the management level. The complaint cites four specific examples: (1) her application for a program manager position in or around 2001; (2) her application for the position of facilitation coordinator in or around December 2003; (3) her application for the position of program manager in or around January 2004; and (4) her application for the position of human resources administrator in or around May 2004.

5The respondent concedes that the latter three examples fall within the one year period prior to the filing of the underlying complaint, which this Tribunal has held is the relevant period for the application of s. 34(1) of the Code in relation to transitional applications: Taylor-Wright v. York University, 2010 HRTO 312. However, the respondent takes issue with the first alleged incident, which occurred in or around 2001, as well as the general allegation in the opening paragraph of the complaint that the applicant has applied for internal positions without success since the commencement of her employment in 1997, on the basis that any such applications which pre-date October 12, 2003 fall outside the one year time limit.

6In my view, the first issue for me is whether the application in 2001 can be regarded as forming part of a “series of incidents” within the meaning of s. 34(1)(b) of the Code. In this regard, I accept and agree with the reasoning in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series” (see para. 11).

7The applicant relies upon this Tribunal’s decision in Pakarian v. Chen, 2010 HRTO 457 to assert that events which had occurred over two years prior to the filing of an application could be considered part of a “series of incidents”. With respect, that assertion is a misreading of the decision in that case. While the Tribunal found that most of the events raised in the application had occurred between 2005 and 2007, the Tribunal noted that since the time of these events, the applicant had pursued various internal avenues to try to get his allegations of discrimination and harassment addressed that only ended on March 13, 2009 when a final decision was issued, which was seven months prior to the filing of the application. While there were periods when matters were under investigation or decisions in the internal processes were pending, there was no “gap” of a greater than one year period where either the applicant alleges that discrimination or harassment occurred or where he was actively pursuing these allegations.

8The applicant also cites the Commission’s Policy and Guidelines on Racism and Racial Discrimination as support for the proposition that all of the circumstances must be considered in order to determine whether racial discrimination has occurred. The applicant relies upon this proposition to assert that all of the job applications cited by her need to be considered. In my view, that is a very different proposition than the question of whether the applicant can allege racial discrimination in relation to a job application from 2001, some three years prior to the filing of her complaint, and argue that this Tribunal should make a finding that the respondent violated the Code in relation to that specific job application process and award remedies for that specific allegation, which may include compensation for monetary losses. Whether the 2001 job competition is relevant and admissible evidence as part of the circumstances surrounding the three later job competitions is an entirely separate question from whether this job competition forms part of a “series of incidents” such that it is included as an allegation upon which the finding of a Code violation may be sought.

9In the end, I am not satisfied that the material before me is sufficient to establish that the 2001 job application forms part of a “series of incidents” in relation to the three job applications that occurred some two to three years later. Accordingly, I find that the 2001 job application falls outside the one year time period within the meaning of s. 34(1) of the Code.

10As a result, I next need to consider whether the applicant has established that her delay in raising this allegation was incurred in good faith and that no substantial prejudice has been caused to the respondent as a result of the delay.

11In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

12In the instant case, both parties have referenced a letter that was sent by a group of employees, including the applicant, in December 2001 alleging systemic discrimination in the respondent’s hiring practices and a grievance relating to these issues that was filed in January 2002. The applicant submits that the program manager position for which she had applied was a non-union position, and therefore could not form part of this grievance. While that may be, this does not explain why the applicant failed to pursue her allegation of racial discrimination in relation to the 2001 job application either at that time or within a one year period thereafter.

13The applicant states that it was when she subsequently and unsuccessfully applied for other non-union positions, presumably referring to the applications in 2003 and 2004, that she filed her human rights complaint. However, this does not provide an explanation for why the applicant failed to pursue her allegation of racial discrimination in relation to the 2001 application at an earlier time, particularly when the group letter and grievance indicate that she was alive to the allegation of racial discrimination in the respondent’s hiring practices at that time. As a result, I find that that applicant has not provided a reasonable explanation to justify her delay in proceeding with her allegation in relation to the 2001 application, and as such I do not find that the delay was incurred in good faith. As both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it is not necessary for me to consider the question of whether any substantial prejudice would be caused to the respondent.

14As a result, the respondent’s request is granted and the allegation relating to the 2001 job competition is dismissed for delay. While the respondent also seeks dismissal of any other allegations pre-dating October 12, 2003, I note that no such specific allegations have been raised on the face of the complaint. Pursuant to s. 53 of the Code, a transitional application must be based upon the subject-matter of the complaint as filed with the Commission. As such, the only remaining allegations at issue in this proceeding relate to the three job applications in 2003 and 2004.

Request to Add Personal Respondent

15The original complaint was filed against both the respondent organization and Daniel Smith, who was a Regional Director for the respondent at the relevant times. The Tribunal’s file indicates that the applicant initially filed her transitional Application using the wrong form, but named both the respondent organization and Mr. Smith as respondents. However, when she re-filed her Application using the correct form, she only named the respondent organization as a respondent.

16While this is part of the history of the matter, in my view it makes little difference to the issue before me. Over the past two years, the Tribunal has developed principles that apply both in the context of a request to add a personal respondent and in the context of a request to remove a personal respondent. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31. Indeed, it would lead to an absurd result if there was a lower threshold to add a personal respondent, only to then have the Tribunal apply a higher threshold in response to a request to remove the very same personal respondent. As a result, I do not understand this Tribunal’s decision in Mitchell v. London Transit Commission, 2009 HRTO 682 to have changed the Tribunal’s well-established approach to the issue of the adding or removal of personal respondents. As a result, even if I accept the applicant’s submission that it was only by oversight that Mr. Smith was not named as a personal respondent in the transitional Application, the same principles would apply.

17As in most cases, there does not appear to be any real issue as to the application of the first three factors of the test set out in Persaud. The respondent organization is alleged to be liable for the same conduct, the respondent has conceded that it is vicariously liable for the actions of Mr. Smith as its employee, and there does not appear to be any issue as to the ability of the respondent to provide a remedy. As a result, the issue focuses on whether there is any compelling reason to add Mr. Smith as a personal respondent, such as whether his individual conduct is a central issue in the proceeding or whether the nature of his alleged conduct is such that is may be appropriate to award a remedy against him personally.

18Apart from the allegation relating to the 2001 application which has been dismissed, Mr. Smith’s name is not otherwise mentioned in the complaint. In her submissions, the applicant states that Mr. Smith was her direct supervisor. In the Request for Order, the applicant states that Mr. Smith “was responsible for making decisions that affected the applicant’s efforts to apply for other positions”, and then in her reply submission she states that “as her manager, he was involved in all of the hiring and promotion activities that impacted the applicant”.

19What the applicant does not say is that she is alleging that Mr. Smith was responsible for the denial of her job applications in all or any of the three incidents at issue. Indeed, in relation to the most recent alleged incident, the applicant states in her complaint that she was interviewed by two other individuals and does not reference Mr. Smith as having been involved in the interview or selection process at all.

20In these circumstances, I am not prepared to find that the applicant has established that there is a compelling reason to add Mr. Smith as a personal respondent. Accordingly, the applicant’s request is dismissed.

21I am not seized.