Persaud v. Toronto Community Housing Corporation, 2010 HRTO 1315

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ghiansaroop Persaud Applicant

-and-

Toronto Community Housing Corporation, Toronto Civic Employees’ Union Local 416, Derek Ballantyne and Mark Ferguson Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: June 9, 2010 Citation: 2010 HRTO 1315 Indexed as: Persuad v. Toronto Community Housing Corporation

APPEARANCES

Ghiansaroop Persaud, Applicant ) Self-represented Toronto Community Housing Corporation ) and Derek Ballantyne, Respondents ) Christina Henderin, Counsel Toronto Civic Employees’ Union, ) Local 416 and Mark Ferguson ) Risa Pancer, Counsel )

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) filed on December 9, 2008. The Application arises out of the applicant’s employment with the Toronto Community Housing Corporation (“TCHC”). The applicant alleges that he was discriminated against by TCHC and his union, along with the named individual respondents in his employment and membership in a vocational association on various grounds including race and disability.

2Two separate Responses were filed: a Response by TCHC and Mr. Ballantyne; and a Response by the Union and Mr. Ferguson.

3On December 30, 2009, the Tribunal noted the concern expressed in the Responses and elsewhere in the material regarding the lack of particulars in the Application and issued a Case Assessment Direction (“CAD”) which directed, among other things, that the applicant provide a detailed summary of his own proposed evidence to the other parties and the Tribunal. The applicant did not comply with the CAD.

4This matter came on for hearing on January 19, 2010. At the outset of the hearing, the parties agreed to the removal of Brian Cochrane, who had been originally named as a respondent. As a result, Brian Cochrane is removed as a respondent and the style of cause is amended accordingly.

5In addition, the Tribunal addressed the applicant’s failure to comply with the CAD. After hearing from the parties, the Tribunal determined that the applicant would be permitted to present his evidence on all issues. Further, the Tribunal determined that, following the applicant’s evidence in chief, the Tribunal would consider submissions on whether it was appropriate to address preliminary issues including the deferral and/or dismissal of the Application.

6At the conclusion of the applicant’s evidence in chief, the respondents identified several preliminary issues. All respondents assert that the Application should be dismissed in whole or in part on the basis of delay. Based on the applicant’s evidence, it became apparent that some of the allegations were arguably untimely; in the case of the allegations against the respondent TCHC and Mr. Ballantyne all the allegations were filed more than 12 months after the last incident complained of as the date of the last incident was clarified to be May 14, 2007. In addition, and in the alternative, the respondents argue that the Application should be dismissed in part on the basis that another proceeding – a settlement of several grievances – has appropriately dealt with the substance of part of the Application. Further, the Union and Mr. Ferguson argue that the allegations against the Union and Mr. Ferguson fail to disclose a prima facie case of discrimination.

7On March 22, 2010, the Tribunal heard the parties’ submissions on delay. This Interim Decision addresses the issue of delay and provides further directions regarding the continuation of this matter.

The Applicant’s Evidence

8The applicant was given an opportunity to provide evidence on the allegations underlying his Application, as well as the reasons for filing the Application on December 9, 2008. In the course of his evidence the applicant sought to rely on a number of documents, some of which he produced for the first time at the hearing. For the most part, the respondents did not object to the late introduction and I accepted the documents as exhibits. However, I also directed the applicant to ensure that he provide oral evidence on any allegations that he was making to avoid any ambiguity about the scope of his allegations.

9At times, the applicant’s evidence was general and vague. I gave the applicant the opportunity to clarify his evidence and to explain what his allegations were and how they engaged the Code although, even with additional questioning, the applicant’s evidence remained somewhat vague. The applicant also amended his allegations during the course of his testimony. For example, initially, the applicant stated that he was relying on allegations from 1994 to 2007 in the case of the respondents TCHC and Mr. Ballantyne, but near the end of his testimony clarified that he was no longer pursuing allegations from the period 1994 to 2003 other than as “character references”. Similarly, the applicant amended his allegations against the union and Mr. Ferguson by either not pursuing some matters (e.g. disclosure of his health records) or rescinding others (e.g. allegations regarding a union member who has since died).

10While the applicant provided his evidence on all issues, the respondent was permitted to cross-examine the applicant only on his evidence related to delay.

11The summary below represents a brief outline of the applicant’s evidence as is necessary to consider the issue of delay.

Background

12The applicant self identifies as a “Black person living in Canada” and indicates that he is of East Indian origin.

13The applicant has been employed as a permanent full time employee by the respondent TCHC since August 15, 1994, although he ceased to be actively at work on May 14, 2007. On that date, following a meeting with representatives of TCHC and his union, the applicant left active employment for the purpose of applying for benefits from the Workplace Safety and Insurance Board (“WSIB”). Notwithstanding the applicant describes the events of May 14, 2007 as an “agreement”, he testified that he felt he had no option other than to leave and views the “requirement” that he leave active work and apply for WSIB benefits as part of the discriminatory treatment he experienced by the respondents. The applicant was subsequently approved for WSIB benefits and has continued to receive benefits since that time.

14In his testimony, the applicant expressed dissatisfaction that he had been advised on January 31, 2008 that he would not be receiving the increases payable to other employees actively at work. In his Application the applicant explains the connection between these two incidents, and his delay in making his Application, on the basis that what started in May 14, 2007 “become a crisis Jan 31,08, when the Workplace Safety & Insurance Board reneged on the Agreement May 14,07”.

The Applicant’s Allegations

15After hearing the applicant’s testimony and clarifications, I am satisfied the allegations against the respondents TCHC and Mr. Ballantyne are the following:

• In the period ending September 2006, the applicant was harassed and discriminated against on the basis of race by a tenant representative who resided in one of buildings that the applicant maintained as part of his job duties. The applicant alleges that he reported his concerns to TCHC, but they did not appropriately respond to them.
• On November 16, 2006, January 4, 2007 and April 4, 2007 the applicant was unfairly disciplined and/or harassed by TCHC.
• In the period mid April to May 14, 2007, the applicant alleges that TCHC and his union asked him to leave the workplace and apply for WSIB benefits. The applicant (who was then 63 years old) alleges that by approaching him and suggesting that he apply for benefits, TCHC was discriminating against him on the basis of race and age.

16The applicant states that he was discriminated against by the union and Mr. Ferguson on the basis of race, colour and disability. After hearing the applicant’s testimony and clarifications and subject to paragraph 43 below, I am satisfied the allegations against the union and Mr. Ferguson are as follows:

• In or about 2006, every time the applicant had a problem, he talked to the chair of his union, but he did not receive a response to his telephone call/inquiry, which the applicant contends was because of his race.
• In the meetings in April and May, 2007, the union failed to properly represent him regarding the proposal that he leave work for the purpose of applying for WSIB benefits. The applicant alleges that the union failed to ask questions on his behalf pertaining to the number of persons with disabilities in the workplace, which he views as discrimination based on disability.
• In the period, “before December 2007” (the time period was clarified in answer to a specific question posed by the Tribunal), the union did not service his grievances appropriately because of his race. This allegation appears to relate to four grievances, dated August 10, 2006 (regarding the failure of TCHC to provide a safe and harassment free workplace by its handling of the alleged conduct of the tenant representative), January 22, 2007 (regarding a written warning), and April 4, 2007 (regarding harassment by TCHC and a second grievance of the same date regarding a suspension).
• On March 12, 2008, the union told the applicant that he could not run for certain union positions because he was on WSIB benefits, which the applicant alleges constitutes discrimination based on race.
• On April 9, 2008, the applicant alleges that he was attacked in a humiliating way by a union member who implied that he should not be in attendance at a union meeting. The applicant states that the member was implying that because he was black he should not have a disability. The applicant alleges that the union chair and grievance chair were present but failed to interject.
• In the period March 18, 2008 to May 24, 2008, the applicant brought a number of concerns, including in respect of the foregoing allegations, to the attention of the union’s president and national president but the union and its representatives did not appropriately respond to his inquiries.
• At an unspecified date in 2008, the applicant attempted to volunteer with the union’s health and safety committee but was denied a position, which the applicant appears to allege was based on race.

THE APPLICANT’S EVIDENCE ON DELAY

17The applicant states that any delay was not his “fault” and that the delay in complaining about allegations that predate December 2007 was caused by the transition from the former human rights system to the current model of an applicant filing an application at the Tribunal.

18The applicant states that he approached the Ontario Human Rights Commission (“OHRC”) about his concerns in 2007 (three possible dates were given ranging from April to early August) and was told that they were no longer accepting complaints because they were trying to clear up the backlog and that he should wait and file with the Tribunal in the following year. The applicant was not able to identify who he spoke to and had no record or documentation regarding his inquiry.

19The applicant states that he followed up with the OHRC in April 2008 because he wanted to make certain that he was “within time” and was subsequently provided with different advice; in fact he states that he was given two file numbers and written information about the process, which indicated that he could file with the OHRC, but must do so by June 2, 2008.

20The applicant provided copies of two documents which identified two separate file numbers assigned on May 12, 2008. He was unable to explain why there were two file numbers. The documents confirm that the applicant was instructed to file any complaint by June 2, 2008 but do not provide any description of the complaint[s].

21The applicant states that he filed a complaint on July 7, 2008 with the OHRC and was advised that he should be filing with the Tribunal and if he required assistance in this regard, he should contact the Human Rights Legal Support Centre (“HRLSC”). A copy of the complaint filed with the OHRC was submitted as an exhibit. The complaint is based on employment and appears to identify only TCHC, Mr. Ballantyne and two other personal respondents (neither of whom appears to be associated with the union).

22According to the applicant, upon being advised that the OHRC could no longer assist him, he contacted the HRLSC and had various telephone calls with representatives of HRLSC in the summer and fall of 2008. The applicant states that he filed at the Tribunal once he became aware that the HRLSC would not be able to assist him. The applicant’s evidence as to when he received that advice changed several times in the course of his testimony – ranging from September 29, 2008 to November 5, 2008.

23In explaining any delay, the applicant also relies on his efforts in attempting to redress some of his concerns through the grievance process by his filing of grievances over the 2006 and 2007 incidents as referenced above. The applicant states that he took other steps to address his concerns when it became clear that the union was not pursuing his grievances, although he did not explain how the timing of his inquiries related to the timing of the processing of grievances.

24The applicant did not dispute that, once he went off work in May 14, 2007, the union did not pursue the 2006 grievance further. The applicant’s evidence was that he understood that all grievances remained outstanding, a fact which was strongly contested by the respondents.

25The respondents take the position that the three grievances from 2007 were settled in 2008 and the only grievance that remains outstanding is the August 2006 grievance and that it is being held in abeyance because the applicant is not at work.

DECISION

26Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. 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.

27Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or if there was a series of incidents, more than a year after the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist; namely that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

28The Tribunal has explained that “good faith” does not simply mean the absence of “bad faith” and that the one year limitation period is consistent with the policy objective that human rights claims be dealt with expeditiously:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at para. 24

29In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights in a timely manner. See Miller, supra, at para. 25; Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, at para. 20.

30In this Application, I find it appropriate to address the allegations against the respondent TCHC and Mr. Ballantyne first. All of the allegations against the respondent TCHC and Mr. Ballantyne are filed beyond the one year time frame as the date of the last incident as clarified in the applicant’s evidence is May 14, 2007.

31In explaining why it took him approximately 19 months from the date of the last incident to file the Application, the applicant relies on his efforts to file at the OHRC and then navigate the new system, along with his efforts to pursue his rights internally through grievances. I do not find that these reasons, either separately or together, constitute a reasonable explanation for his delay.

32To the extent the applicant suggests that he had contacted the OHRC in 2007, I do not accept his evidence. There was no mention made of this contact in his Application and his evidence in the hearing was not credible on this point because of the inconsistencies and lack of documentation. The applicant was confused as to when he contacted the OHRC in 2007 (changing the date three times in his evidence) and I find his explanation that he then decided to follow up in 2008 to make sure he was “in time” self-serving. Further, there was no documentation in support of his claim. This is in contrast to his contact with the OHRC in 2008, which included documentation from the OHRC as well as personal notes that he made of his efforts.

33I do accept that the applicant made efforts in 2008 to contact the OHRC and then the HRLSC. However, the applicant’s evidence does not reflect someone acting with due diligence. Based on the correspondence filed by the applicant, it is clear that the applicant was warned about the consequences of “delay” by the OHRC and was advised that any complaint should be filed with the OHRC by June 2, 2008. The applicant did not explain why he neglected to file at the OHRC by that date. While the applicant did have some communication with the HRLSC in the summer and fall of 2008, I do not find that this justifies taking approximately four more months to file his Application at the Tribunal at a point when he was already outside the one year timeframe.

34In my view, the second reason advanced – that the applicant had filed and was awaiting the outcome of grievances – also does not provide a reasonable explanation for the delay. It is notable that there is no grievance filed about the event of May 14, 2007. While it does appear that there were some grievances filed about harassment and discipline, the applicant has not explained how the timing and processing of these grievances relates to his efforts in seeking a remedy at the OHRC and then the Tribunal. Moreover, the Tribunal has held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

35In summary, I do not find that the applicant has satisfied me that any delay in filing his allegations against the TCHC and Mr. Ballantyne was incurred in good faith. Having come to this conclusion, there is no need to address the issue of whether or not these respondents suffered substantial prejudice as a result of the late filing. Accordingly, the Application against the respondents TCHC and Mr. Ballantyne is dismissed.

Should any allegations against the Union be dismissed for delay?

36Some of the allegations against the union are timely since they occurred in the 12 month period before December 9, 2008. However, there appear to be three allegations which occurred before December 2007. After considering the applicant’s submissions on this point I am not satisfied these earlier incidents can be said to be part of a series of incidents such that they are timely allegations.

37Nor I am unable to conclude that the applicant has established his delay in proceeding with these allegations was in good faith for the same reasons set out above concerning the allegations against the TCHC and Mr. Ballantyne. In addition, there is no evidence the applicant even raised his concerns about the union with the OHRC. The documentation he produced from the OHRC makes no reference to a complaint against the union or its representatives.

36Further, in his submissions, the applicant relied on his effort to raise some of his concerns internally with the union as an explanation for his delay. In March 2008, the applicant did complain internally to the union about some of his concerns including the circumstances of his leaving work in May 2007. However, in subsequent correspondence with the union, he did not follow up on those issues which are outside of the 12 month period. While it may be reasonable to pursue some issues internally or otherwise before filing at the Tribunal these facts – an internal complaint 10 months after the fact, followed by no further inquiries – does not support a finding of good faith.

37In the circumstances, I am not satisfied that any delay in complaining about the incidents involving the union and Mr. Ferguson that occurred prior to December 2007 was incurred in good faith.

38In summary, I find that the allegations against the union and Mr. Ferguson that pre-date December 2007 are dismissed on the basis of delay.

Next Steps

39The Application will continue against the union and Mr. Ferguson on the remaining allegations. At the last day of hearing, the applicant stated that he may be calling an additional witness. The respondents objected on the basis of relevancy. In order to determine the matter, I directed the applicant to file a detailed summary of the intended evidence of the witness by March 29, 2010 should he wish to call the witness. No summary has been received and accordingly, I assume that the applicant’s case has been completed subject to any further cross-examination by the union on issues other than delay.

40The union has indicated its interest in making submissions on two additional preliminary issues – that the applicant’s allegations fail to raise a prima facie case and that the allegations have been appropriately dealt with, in part, by another proceeding given the settlement of three grievances. I would assume that this latter issue is now moot given my conclusion above.

41In the circumstances, the Registrar will schedule one further day of hearing for the continuation of this matter. At the commencement of the hearing day, the Tribunal will seek submissions from the parties as to whether it is fair, just and expeditious to hear submissions on the remaining preliminary issue first or whether submissions can be heard at the conclusion of the case. However, the parties should be prepared to proceed on all issues – the preliminary issue, as well as continuing with the hearing on the merits of the Application. For clarity, parties should be prepared to make submissions, and to call evidence, if necessary, on the following:

whether the allegations against the union and Mr. Ferguson should be dismissed, in whole or in part, on the basis that even if they are found to be true the allegations do not constitute a violation of the Code.

42The parties may wish to have regard to some of the Tribunal’s case law on what is required to establish a prima facie case. See, for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996.

43With respect to the merits of the Application, the applicant provided evidence on his allegations including what ground(s) he relied on as set out in paragraph 16 above. While the applicant set out three grounds in his Application, it appears that for the remaining timely allegations, the only ground relied on is race. Should the applicant wish to rely on any additional grounds of discrimination in relation to the remaining timely allegations set out in paragraph 16 above, the applicant is directed to advise the Tribunal in writing of any additional grounds relied on with a copy to the union and Mr. Ferguson within 14 days of the date of this Interim Decision. The union and Mr. Ferguson may provide any response to the applicant’s submissions within 7 days of the receipt of the same.

44In addition, the union should be prepared to complete its cross-examination of the applicant on any part of his evidence that remains outstanding and call any evidence regarding the merits of the allegations which have not been dismissed by this Interim Decision.

45If the union and Mr. Ferguson wish to rely on any facts or written materials including any documents or case law, not already submitted to the Tribunal, they must deliver them to the applicant and file them with the Registrar within 30 days of the date of this Interim Decision.

46If the applicant wishes to rely on any additional grounds as case law, he should deliver the same to the other parties and file the case law with the Registrar within 30 days of the date of this Interim Decision.