Savage v. Toronto Transit Commission, 2010 HRTO 1360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Savage

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: Mark Hart

Date: June 16, 2010

Citation: 2010 HRTO 1360

Indexed as: Savage v. Toronto Transit Commission

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the Code), dated June 19, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on April 24, 2006.

2The purpose of this Decision is to address the request by the respondent, Toronto Transit Commission ("TTC") to dismiss the Application for delay.

3Section 34(1) and (2) of the Code provide as follows:

(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.

4Transition 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.

5Section 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.

6The statutory language makes it clear that section 34 applies to transition applications. In my view, the phrase "apply to the Tribunal" in s. 34(1)(a) and (b) needs to be interpreted 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.

7As a result, the initial question for me is whether the complaint that underlies this Application was filed within one year of the last incident or, if there was a series of incidents, within one year of the last incident in the series.

8The first three paragraphs in the applicant's complaint relate to alleged sexual harassment by a co-worker that occurred in the period from May to September 1995, more than 10 years prior to the filing of her complaint. The next three paragraphs raise an allegation of harassment in June 2001 by an assistant superintendent for questioning a ruling on the job. The following two paragraphs relate to an allegation of sexual harassment from late October 2004, which was investigated by a TTC Human Rights Officer. The complaint alleges that the applicant was informed in May 2005 that it could not be proven that the physical contact was of a sexual nature, such that no charges were filed and all proceedings were dropped.

9The first question for me is to determine whether the allegations raised in the complaint form a "series of incidents". In my view, a gap of more than one year between incidents in a series would in most cases interrupt the series. In the context of this complaint, there is a gap of over five and a half years between the first alleged incident of sexual harassment and the second allegation of harassment, and then a gap of almost three and a half years between the second allegation of harassment and the final allegation. Further, while the 1995 and 2004 allegations both relate to sexual harassment, it appears from the complaint that the 2001 allegation raises harassment of a different nature, which was harassment for questioning a ruling on the job and alleged threatening gestures. In all of these circumstances, I do not find that the incidents alleged in the complaint form part of a series of incidents.

10As a consequence, the allegations from 1995 and 2001 are clearly well beyond the one year time limit. With regard to the allegation of sexual harassment in October 2004, I would be prepared to find that this allegation forms part of a series of incidents that includes the TTC investigation and the reporting of the results of that investigation. In this regard, I note that in the complaint, the applicant alleges that she received a letter from the TTC Human Rights Officer in May 2005 informing her of the result of the investigation and that her complaint of sexual harassment had not been substantiated. This accords with a statement in a medical report dated March 16, 2007 from the Centre for Addiction and Mental Health ("CAMH"), which was filed with the Application and references a report from the TTC Human Rights Officer dated May 18, 2005.

11On the other hand, the respondent has submitted materials showing that the report by the TTC Human Rights Officer had been prepared on February 23, 2005, and that the results of the investigation were shared with the applicant at a meeting on March 4, 2005. A memo to the applicant dated March 7, 2005 confirms the meeting and that the applicant was advised that "while the evidence suggests that there was some form of physical contact between [the applicant] and [a co-worker], the evidence does not support that it was sexual in nature". No documents have been filed from the May 2005 period, although it may be that the applicant received a copy of the actual investigation report at a later date.

12In my view, as of the March 4, 2005 meeting, the applicant knew that the TTC investigation had not substantiated her complaint of sexual harassment and she had been provided with a summary of the investigator's finding. While she may not have received the actual investigation report until sometime in May 2005, this does not in my view make May 2005 the date of the last "incident" within the meaning of s. 34(1) of the Code. In my view, an "incident" within the meaning of s. 34(1) must be an event upon which an allegation of a violation of the Code is based.

13In the instant case, I am prepared to assume that the applicant is alleging that the respondent failed to take reasonable steps to address the alleged sexual harassment from October 2004 by finding that her internal complaint was not substantiated. In my view, the date upon which this allegation crystallized was the date when the applicant was informed of the results of the investigation, which was on March 4, 2005, and not on some later date when she may have received the investigation report. As a result, in my view, the date of the last incident is March 4, 2005, which is more than one year prior to the date that the complaint was filed on April 24, 2006.

14As 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.

15In 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. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

16The applicant states that at the beginning of 2006, in all the time she was waiting to hear a response to her claim, the respondent had her claim and planned to do absolutely nothing with it and was trying to keep her claim internal. The applicant states that at this point she finally figured out that the respondent was using the name "Human Rights Commission" under false pretences and presenting itself as an outside unbiased board. She states that this is when she proceeded to file her complaint through the proper channels with the Ontario Human Rights Commission.

17In fact, the material on file with the Tribunal establishes that the applicant was made aware of the results of the TTC investigation on March 4, 2005, and not at the beginning of 2006 as the applicant claims. At this point, the applicant knew that the internal process with the respondent was concluded, and that is the point from which she should have taken steps to file her complaint with the Ontario Human Rights Commission.

18The applicant further appears to be stating that she thought the investigation into her internal complaint was being conducted by the Ontario Human Rights Commission, rather than by the respondent itself. It is unclear to me how the applicant could have reasonably understood this. It appears from material filed by the respondent that she was interviewed by the Human Rights Officer from the respondent's Human Rights Unit, who was acting pursuant to the respondent's Workplace Harassment policy. The officer's notes of this interview indicate that the officer explained her role under the policy and the investigative process. Further, the memo issued to the applicant on March 7, 2005 came from the officer on the respondent's letterhead.

19In any event, it is not enough for the applicant to say that she was ignorant of her rights. She must also establish that she had no reason to make inquiries about those rights. Having been informed on March 4, 2005 that the investigation had not substantiated her complaint of sexual harassment, the applicant had every reason to make inquiries about her rights. Had she done so in a timely way, any misunderstanding she may have had about who conducted the investigation would readily have been rectified, as it appears it was in early 2006. The fact that the applicant failed to take steps to inform herself of her rights at an earlier time is not, in my view, sufficient to establish a reasonable explanation for the delay in filing her complaint with the Commission.

20The applicant has not stated medical reasons as an explanation for the delay in filing her complaint. Nonetheless, in view of the voluminous medical information that the applicant submitted with her Application, I have considered whether her medical condition at the time may provide a reasonable explanation for the delay in filing her complaint. The most comprehensive document detailing the applicant's medical history appears to be the CAMH report from March 2007. This report indicates that in May 2005, the applicant was diagnosed with major depressive disorder and post-traumatic stress disorder, and was taking medication for those conditions. In the summer of 2005, the applicant attended a hospital day treatment program. Upon discharge from that program in early August 2005, the applicant was reported to still be experiencing symptoms of her diagnosed medical conditions, but her insight was deemed fair and her judgment was assessed as "normal". In November 2005, the applicant appears to have been referred for an assessment and therapy, but the report does not indicate the result of any such assessment. The report also documents various medication changes during the relevant period from March 2005 to April 2006.

21In my view, while there is no question that the applicant was experiencing medical issues during the relevant period, I find that the medical evidence does not sufficiently establish that her medical conditions provide a reasonable explanation for her failure to file her complaint with the Ontario Human Rights Commission at an earlier time. In this regard, I particularly note the discharge summary from August 2005 that reports that the applicant had fair insight and normal judgment, which in my view indicates that she would have been capable at that time of taking steps to inform herself of her rights.

22As a result, I find that that applicant has not provided a reasonable explanation to justify her delay in proceeding with her allegations in relation to the October 2004 incident and the resulting TTC investigation, 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.

23For all of these reasons, the respondent's Request is granted and the Application is dismissed in its entirety. Accordingly, the hearing currently scheduled for September 13, 2010 is cancelled.