George Polihronakos v. The Corporation of the City of Mississauga, 2010 HRTO 1433

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Polihronakos Applicant

-and-

The Corporation of the City of Mississauga Respondent

and

Canadian Union of Public Employees and its Local 66 Intervener

INTERIM DECISION

Adjudicator: Kathleen Martin Date: June 30, 2010 Citation: 2010 HRTO 1433 Indexed as: Polihronakos v. Mississauga (City)

1This is an Application filed on July 29, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application alleges discrimination in employment on the ground of age as well as reprisal.

2In addition to a Response, the respondent filed a Request for an Order During Proceedings seeking dismissal of a significant part of the Application on the basis of delay and seeking dismissal of the Application as against the four personal respondents. By Interim Decision 2010 HRTO 1087 the Tribunal scheduled a hearing to deal with this Request, along with a separate Request brought by the applicant's union to dismiss the Application on the basis that it failed to disclose a prima facie case. The applicant subsequently withdrew his allegations against the union so the only outstanding preliminary issues relate to those set out in the City's Request. See 2010 HRTO 1112.

3A hearing was held on May 21, 2010. At the outset of the hearing, the parties agreed to the removal of the four individual respondents. The respondents, Messrs. Cesario, Ptiushka, Powell and Draycott, are removed as parties and the style of cause is amended accordingly.

4I have decided to dismiss a significant part of the Application based on delay. My reasons are set out below.

BACKGROUND

5The Application arises out of the applicant's employment as a temporary labourer with the respondent during the period September 2002 to September 12, 2008. While the applicant complains about a number of issues, his allegations under the Code appear to relate to his being denied various permanent positions with the City and then being reprised against when he complained about the discriminatory hiring practices. The former allegations are filed more than a year after the incidents and the latter allegations are timely under the Code.

6The applicant alleges that in the period 2004 to 2007, he applied for a number of permanent positions but was rejected in lieu of younger and less experienced candidates. In his written materials, the applicant refers to twenty job competitions in the period, but at the oral hearing, the applicant stated that there had been "four or five" competitions occurring in 2004, 2005 and 2007. The respondent states that it only has records for four competitions that the applicant applied for because its practice is to routinely destroy job competition records after a specified period. For purposes of this decision, I do not find it necessary to decide what the exact number of competitions is as it would not change the result.

7The applicant alleges that in the spring of 2007, he raised concerns with the respondent about unfair hiring practices, including his allegation of discriminatory treatment on the basis of age and stated that he would be filing a human rights complaint. At this time, the applicant also filed a grievance about the same issue. The applicant met with representatives of the respondent and following the meeting, the respondent sent the applicant a letter in which it denied the allegations, but indicated that if the applicant elected to withhold filing a human rights complaint pending the outcome of a performance assessment at his current assignment which they anticipated would be five months and a subsequent application for a probationary labourer position, they would not raise an issue of delay. In the same letter, the respondent suggested that there could be an opening available for a probationary labourer position in or about the same time. In his submissions before me, the applicant stated that he understood the City was giving him until the end of his next assessment to consider whether he wanted to take any action.

8In addition to the comments in the letter about delay, the applicant also states that his supervisor encouraged him not to file a complaint. In particular, he suggested that the applicant let it "blow over" and that he would eventually get a permanent position.

9Based on this, the applicant decided that he would not file any complaint. The applicant finished his assignment in September 2007 and received what he viewed as a positive performance assessment. However, the respondent did not post or fill any position and the applicant did not get a permanent job.

10The applicant's grievance regarding the allegation of discriminatory hiring practices was not pursued by the union. The applicant learned that the grievance had been allowed to lapse in December 2007.

11On August 28, 2008, the applicant alleges that he was reprised against when he was disciplined following the delivery of plants to his residence in a City vehicle. As a result of this incident which was characterized as being a misuse of City resources, the applicant was suspended. The applicant alleges that there was no basis for the discipline and that the City took this action because he had "claimed or enforced" his rights under the Code earlier by raising the complaint of discriminatory hiring practices in the spring of 2007. Subsequent to this incident, the applicant's temporary employment with the respondent ended on September 12, 2008 and although he has submitted applications since, he has not been re-hired for any future temporary work or permanent positions.

12In the material filed before the hearing, the applicant clarifies that April 27, 2009 is the date of the last incident in the Application and describes that this date corresponds to additional hiring of permanent labourers by the respondent pursuant to a competition. However, the applicant does not appear to be contesting this hiring on the basis of age-related discrimination. According to the applicant's submissions at the hearing, the successful candidates included employees in his "age group".

13At the hearing, I directed the applicant to explain how the various allegations were connected or related to each other as well as the reasons for filing the Application about the job competitions approximately 15 months after the alleged incidents occurred. With respect to the former the applicant indicated that the only connection was between the 2007 job competition and subsequent events in August 2008 since it was his "allegations" following this competition which "infuriated" the respondent such that they used the August incident in 2008 to get rid of him. As for the reasons for filing late, the applicant stated that he relied on the respondent's letter and his supervisor's subsequent suggestion that he let it blow over. The applicant also suggested that there was another grievance filed on September 28, 2008 that dealt with his "situation". However, the respondent denied that this grievance had anything to do with the applicant as it pertained to the treatment of a union representative (an explanation the applicant could not refute). Having reviewed the grievance and its text, I find no basis for finding that this grievance had anything to do with the allegation of discriminatory hiring practices

Are the job competition allegations barred by delay

14Section 34 of the Code provides 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.

(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.

15The Tribunal will not deal with an Application filed more than a year after an incident, or where there was a series of incidents, more than a year after a last incident unless it is satisfied that the circumstances in section 34(2) exist. Having regard to the timing of alleged incidents in this Application, the question arises as to whether the various incidents (the job competition allegations occurring over a three year period and the reprisal allegations occurring approximately 15 months later) can be found to be a series of incidents such that the incidents are timely, or in the alternative, has the applicant met the requirements of section 34(2).

16The applicant suggested that the job competitions revealed a pattern of discriminatory hiring and as such are a series of incidents. However, when asked to explain how the incidents were related to the timely allegations in the period, August 2008 and forward, the applicant suggested that only the "decision" in the job competition in 2007 was related, since when he was rejected, he complained about the discriminatory hiring and this resulted in the subsequent reprisal in 2008.

17I do not find that the applicant has established that the allegations are a series of incidents. Even apart from the question of timing, the job competition allegations appear to be distinct allegations from that of the reprisal incident(s) such that they involve completely different facts and engage a different ground under the Code. I note that even the applicant does not appear to be asserting that there is a relationship between the two types of incidents other than when he raised a complaint about one incident it allegedly resulted in a reprisal 15 months later. While I understand that the applicant wants to rely on the events that occurred when he complained in 2007 about the discriminatory hiring, reliance on this complaint as an evidentiary matter, is a different issue from being able to allege that he was discriminated against on the basis of age in a number of job competitions and being able to seek a remedy for the same, which he seeks to do with his Application.

18As for the question of good faith, I have considered the applicant's submissions but I am not satisfied that he has satisfied me that any delay in complaining about the job competitions was incurred in good faith.

19As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

20In 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 under the Code in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

21I do not find that the applicant has provided a reasonable explanation for his delay. As of May 2007, the applicant took the position that in being rejected in a number of job competitions, he had been discriminated against on the basis of age contrary to the Code. While the respondent suggested that it would not raise a concern regarding delay pending his next performance assessment, the applicant appears to concede that this waiver of any delay only went until his next performance assessment which occurred in September 2007. Further, while the applicant had filed a grievance about the issue, the applicant acknowledged that he became aware that it had elapsed as of December 2007. This leaves the period January to August 2008, where the only explanation offered is that the applicant was trying to do what his supervisor suggested – remain quiet – it appears in the hope that he would get the next vacancy. Even accepting that the supervisor stated as much, I do not find that this is reasonable explanation for delay.

22In the circumstances, I am not satisfied that the delay in pursuing the job competition allegations was incurred in good faith. Having reached this conclusion it is unnecessary to address the question of prejudice. The job competition allegations are therefore dismissed on the basis of delay.

Union's Request to Intervene

23Subsequent to the hearing on June 2, 2010, the union filed a Request to Intervene. The union states that irrespective of the Application having now been withdrawn as against the union, the union continues to have an interest in the proceeding given the remedy sought by the applicant and the issues raised by the Application.

24The Request to Intervene was served on the other parties but no response(s) have been filed and the time for responding has elapsed.

25The Union's Request to Intervene is granted. It will accordingly be given notice of the mediation that will be scheduled. The extent of its participation at a hearing will be determined at the hearing.

Next Steps

26As the parties have agreed to mediation, subject to the Tribunal's determination of the timeliness of the job competitions allegations, the Registrar will contact the parties to schedule a date for mediation.

27The applicant is directed to send to the other parties and file a revised statement of remedy by completing question 10 of the Application (Form 1) within 14 days of the date of this Interim Decision.