Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Duggan

Applicant

-and-

Villa Care Centre Nursing Home, Christina Bath and Edith Robitaille

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: August 17, 2010

Citation: 2010 HRTO 1695

Indexed as: Duggan v. Villa Care Centre Nursing Home

APPEARANCES BY

Marie Duggan, Applicant ) On her own behalf

Villa Care Centre Nursing Home, Christina ) Paula Rusak, Counsel Bath and Edith Robitaille, Respondents )

Service Employees International Union ) Gail Misra, Counsel Local 1, Canada, Proposed Intervenor )

1The applicant filed an Application on October 28, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of ancestry and ethnic origin. In an Interim Decision, 2010 HRTO 586, dated March 17, 2010, the Tribunal ordered a hearing to determine the question raised in a Request for Order During Proceedings filed by the respondents seeking dismissal of the Application without a full Response on the basis that it was filed out of time.

2On August 3, 2010, a hearing by way of teleconference was held. The parties appeared, as did the applicant’s former bargaining agent, the Service Employees International Union Local 1, Canada (“SEIU”), which seeks intervenor status in these proceedings, and attended on the consent of the parties.

3For the reasons that follow, the Tribunal dismisses part of the Application as untimely.

THE APPLICATION

4The applicant worked as a Personal Support Worker (“PSW”) with the respondent nursing home. She was hired in March 2006. The Application alleges a pattern of discrimination and harassment in the workplace from December 2006 up to August 2009. A brief summary of the incidents alleged follows.

5In December 2006, the applicant alleges that she was unfairly blamed and disciplined for the actions of a colleague arising out of a scuffle at the office Christmas party. In October 2007, the applicant received her first performance appraisal, which appeared to draw a link between her communication style and her ethnic background, which she alleges was discriminatory. In July 2008, the applicant was corrected for taking a drink of water from a resident’s cup. She alleges this constituted “constructive harassment”. In the winter of 2008, the applicant was disciplined for taking a muffin from the cafeteria without paying. She alleges that she paid the 50 cents later in the day, and that the discipline constituted harassment. In August 2009, the applicant spotted a colleague drinking from a resident’s cup and confronted her about it. The applicant alleges that the colleague reported her to management and that she, rather than the colleague, was ordered to apologize and claims this treatment was discriminatory.

6Aside from these particulars, the applicant alleges generally that from the beginning of her employment with the respondent company, she was “demeaned, humiliated in front of visitor’s [sic], staff, management.” She claims the harassment got so unbearable that in October 2008 she was forced to begin looking for work elsewhere. The applicant resigned from her full-time position on October 3, 2009. She seeks $705,000 in damages.

Delay

7The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 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.

8The Tribunal must first ascertain whether the last alleged incident of discrimination occurred more than a year prior to the applicant filing the Application. The inquiry under s. 34 does not end upon the factual determination alone that no alleged incidents occurred within the previous year. Section 34(1) must be read in conjunction with s. 34(2), which provides the Tribunal with the discretion to assess the good faith of the applicant and the prejudice to any affected person of waiving the time limit. Only after a complete consideration of section 34 as a whole, and its application to the facts at hand, can the Tribunal decide whether to dismiss for delay.

APPLICANT’S POSITION

9The applicant argued that the allegations in the Application disclose a pattern of harassment that continued through the entirety of her employment, culminating in August 2009, leading to her resignation and subsequent filing of the Application in October 2009. If I do not accept that all of the allegations constitute a series of incidents, the applicant argues that she was unable to file an Application sooner due to intimidation and fear. She testified that she needed her job, had two children to support, and was not able to risk the consequences of complaining about discrimination without financial security or alternative employment.

10The respondents argued that the applicant has not pleaded facts which could give rise to a finding that the Code was breached. They submit that even if the applicant’s allegations are accepted as true, there are no facts that establish a sufficient nexus with the Code grounds pleaded, namely ancestry and ethnic origin, to substantiate her claim of discrimination. Regarding the delay, they argued that all but the last alleged incident (August 2009) occurred prior to the one-year limitation period and that the applicant has given an insufficient explanation to meet the requirement of “good faith”.

DECISION

11I do not accept that the incidents pleaded constitute a series of incidents. The events, even if I accept the applicant’s allegations as true, do not disclose a pattern of conduct. The incidents as pleaded are separated by significant periods of time and bear little to no relation to one another, aside from the two “drinking cup” incidents. Furthermore, it is not clear how the allegations are related to prohibited discrimination. The only allegation that bears any connection to the Code ground pleaded in the Application is with respect to the performance review reference to the applicant’s Italian heritage. That incident occurred in October 2007, two years before the applicant filed the Application.

12In the absence of a series of incidents, the only incident that is not out of time is the allegation from August 2009 (the second “drinking cup” incident). I will deal then with the late allegations first, and then the remaining allegation that is timely.

13With respect to the late allegations, the applicant must satisfy the Tribunal that the delay was incurred in good faith. In order to succeed, the applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

14The applicant has failed to provide a reasonable explanation for the delay. I find the applicant’s claim of fear to be of dubious credibility considering the fact that the she states that she filed a grievance in June 2008 arising out some of the events described in the Application. She offered no explanation for how she was able to overcome her fear of reprisal and file a grievance, while remaining unable to file an Application. Apart from her broad assertion, there is no basis in any of the material before me or the submissions of the applicant providing any support for her contention that a fear of reprisal delayed the filing of this Application. In the circumstances, I am unable to find that the delay was incurred in good faith.

15Regarding the remaining allegation, the second “drinking cup” incident, it is not clear in the applicant’s narrative how this amounted to discrimination on the basis of her Italian ancestry. She complains of differential treatment and seems to suggest it is related to the fact that the person who received preferential treatment is a relative of the owner of the respondent company. Because this incident is not time-barred, I am not prepared to dismiss it at this preliminary stage.

ORDER

16The Tribunal orders as follows:

I The Application is dismissed for delay with respect to most of the alleged discriminatory incidents.

II The Application will proceed with respect only to the second “drinking cup” incident.

III The applicant is ordered to provide particulars explaining in detail how and why she believes the second “drinking cup” incident amounted to discrimination on the basis of her Italian ancestry. She should deliver a copy of these particulars to the respondents and file them with the Tribunal no later than 15 days from the date of this Interim Decision.