Leclerc v. Community Living Huntsville, 2010 HRTO 188

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Leclerc Applicant

-and-

Community Living Huntsville Respondent

-and-

Ontario Public Service Employees Union Intervenor

INTERIM DECISION

Adjudicator: Alan Whyte Date: January 27, 2010 Citation: 2010 HRTO 188 Indexed as: Leclerc v. Community Living Huntsville

APPEARANCES:

Heather Leclerc, Applicant ) on her own behalf Community Living Huntsville, Respondent ) Martin Smith, Counsel Ontario Public Service Employees Union ) Eric O’Brien, counsel

1This is an Application filed on February 4, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment, housing, goods, services and facilities and membership in a vocational association on the basis of family status, age, record of offences, association with a person identified by a Code ground, and reprisal or threat of reprisal.

2This Interim Decision will decide certain procedural issues that were argued by the parties in North Bay on December 1, 2009.

Background

3In her Application, the applicant makes extensive allegations against the respondent which date back to 1996 and extend to December 2008. As noted above, the Application is based on three social areas and a number of grounds of discrimination.

4In an Interim Decision dated June 15, 2009, 2009 HRTO 848, the Tribunal issued a number of directions relating to the provision of particulars by the applicant, the identification of what allegations relate to each ground of discrimination, the delivery of an amended Application, etc. Paragraph 23(2)(b) of the Interim Decision directed the following:

an identification of the events or incidents contained in the Application for which she intends to seek a remedy from the Tribunal and the date on which those events or incidents occurred. If any of these incidents or events do not fall within the limits of s.34(1), the applicant must explain why her delay was incurred in good faith and why no substantial prejudice will result to any person affected by the delay.

5The applicant’s counsel at the time filed correspondence dated July 21, 2009 in response to the directions of the Tribunal. That correspondence was treated by the respondent as an amended Application, and will be referred to as such in this Interim Decision. Accordingly, the respondent delivered a Request for Order during Proceedings (RFOP) which attached a draft amended Response.

6The applicant, with the assistance of the intervenor, has filed eight grievances between 2004 and 2008, some of which are relevant to the issues in the Application. All eight grievances are scheduled to be heard by Arbitrator Nairn on February 19, 2010.

7As a result of the filings made by the parties prior to the December 1, 2009 hearing, the Tribunal issued a Case Assessment Direction on November 25, 2009 which directed that the issues to be addressed at the hearing would be:

• should the Application be dismissed as being outside the Code’s limitation period?
• should the Application be deferred pending completion of the grievance/arbitration procedure?

Decision

8In connection with the social area of goods and services (a short form reference to "services, goods and facilities" in section 1 of the Code), the applicant makes certain allegations in the amended Application regarding a workshop which occurred on October 25, 2008. The respondent took no position with respect to the applicant’s request for amendment of the Application on this issue.

9As the Application was filed on February 4, 2009, this proposed amendment is timely. Furthermore, none of the grievances filed by the applicant arise out of the same set of facts. Consequently, I find that this amendment is appropriate.

10With respect to the allegations relating to discrimination on the basis of age, the applicant confirmed at the hearing that she is not proceeding with the allegations contained in the first paragraph under the heading "Discrimination of [sic] the basis of age" on page 6 of the amended Application.

11The second paragraph under that heading relates to an alleged incident on February 28, 2008. That allegation is timely and is not covered by any of the grievances. Accordingly, that portion of the amended Application is appropriate.

12The third paragraph under that heading relates to alleged incidents on August 18, 2008 and September 12, 2008. In the course of argument, it became apparent that those are the dates of meetings during the grievance procedure relating to one of the applicant's grievances. The respondent took the position that it was inappropriate for the applicant to be relying on statements made by representatives of the respondent in such circumstances, as they are privileged. In the circumstances, the determination of that issue will be left for case management.

13The fourth paragraph under that heading alleges that on an ongoing basis, the respondent refused to give the applicant proper training to which she was entitled for reasons related to age-based discrimination. No dates are provided with respect to the alleged refusals, contrary to the direction contained in the Interim Decision referred to in paragraph 4 above.

14The applicant is directed to provide such dates to the other parties in writing and to file that document with the Tribunal within 21 days of the date of this Interim Decision, failing which that paragraph will be struck from the amended Application. If any of the dates predate February 4, 2008 (one year before the filing of this Application), the applicant may make new submissions as to why her delay in filing was incurred in good faith. Any such submissions should not repeat what was argued by her at the hearing on December 1, 2009, but should relate specifically to the allegations contained in the paragraph in question. The respondent and the intervenor may reply to any submissions made by the applicant within 35 days of the date of this Interim Decision, and may also address the issue of "substantial prejudice" as a result of the delay in filing of the Application.

15With respect to the allegations pertaining to "Association with a person identified by a Code ground" (“the Association heading”) in the amended Application, there are 13 paragraphs under that heading (at page 7 of the amended Application) which contain the particulars of the allegations. The respondent argued with respect to the first six paragraphs that as they do not contain dates as directed by the Tribunal in the Interim Decision, those paragraphs should be struck. The applicant indicated that she would be able to provide dates for each paragraph.

16The applicant is directed to provide such dates to the other parties in writing and to file that document with the Tribunal within 21 days of the date of this Interim Decision, failing which those paragraphs will be struck from the amended Application. If any of the dates predate February 4, 2008, one year before the filing of this Application, the applicant may make new submissions as to why her delay in filing was incurred in good faith. Any such submissions should not repeat what was argued by her at the hearing on December 1, 2009, but should relate specifically to the allegations contained in the paragraphs in question. The respondent and the intervenor may reply to any submissions made by the applicant within 35 days of the date of this Interim Decision, and may also address the issue of "substantial prejudice" as a result of the delay in filing of the Application.

17The seventh paragraph under the Association heading relates to allegations arising out of an incident on January 6, 2008, and is therefore untimely on its face, subject to the possible application of section 34(1)(b) or section 34(2).

18Paragraphs 8 to 13 under the Association heading relate to alleged incidents on dates after February 4, 2008, and are therefore timely. However, the respondent raised a concern about the disclosure of clients’ names (the allegations contained in the amended Application simply refer to "a client" in each of the paragraphs), and pointed out that the applicant had signed a confidentiality agreement at the commencement of her employment prohibiting the disclosure of confidential information about the respondent’s clients. In my view, the disclosure of clients’ names is required in the circumstances of this case in order to provide sufficient particulars to the respondent in order that it may both investigate the allegations and respond to them in these proceedings. The Tribunal's Order in this regard will supersede the effect of the confidentiality agreement signed by the applicant. The same considerations apply to the first six paragraphs under the Association heading.

19The respondent argued that paragraph 13 did not contain any description of any adverse consequence that the applicant may have suffered as a consequence of her having advocated on behalf of a client living in conditions of filth and garbage. The applicant orally provided such information at the hearing but it is appropriate that those particulars be put in writing by the applicant and provided to the other parties, as well as being filed with the Tribunal.

20The main thrust of the applicant’s argument on the delay issue was based on section 34(1)(b) of the Code, which 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.

21I am not able to determine at this stage whether or not there is in fact a "series of incidents" in this case which could cause the Tribunal to find that the allegations which are on their face out of time are in fact timely under section 34(1)(b). That issue can only be determined once the information required under paragraph 16 is provided. There is also the possible application of the Tribunal's discretion under section 34(2) to be considered.

22With respect to the reprisal allegations (commencing at page 8 of the amended Application), those allegations parrot the allegations contained in the “Association with a person identified by a Code ground" section. Therefore, the Tribunal is not able to make any determination at this stage as to the timeliness of those allegations, and will await the production of the information required under paragraph 16 above.

23With respect to the allegations based on disability (commencing at page 10 of the amended Application), those allegations all arise out of events occurring in November and December, 2008 and are therefore timely. They are not covered by any of the applicant's grievances, and therefore the amendment is appropriate.

24Regarding the deferral issue, the respondent sought and the applicant consented to the deferral of the portions of the Application (as amended) encompassed by grievances 2008-0366-0012 and 2008-0366-0013, which will be proceeding to arbitration on February 19, 2010.

Order

25The Tribunal therefore orders:

a) The applicant is directed to provide the dates relating to the allegations contained in the fourth paragraph of the amended Application under the heading "Discrimination of [sic] the basis of age" to the other parties in writing and to file that document with the Tribunal within 21 days of the date of this Interim Decision, failing which that paragraph will be struck from the amended Application. If any of the dates predate February 4, 2008 (one year before the filing of this Application), the applicant may make new submissions as to why her delay in filing was incurred in good faith or is timely under section 34(1)(b). The respondent and the intervenor may reply to any submissions made by the applicant within 35 days of the date of this Interim Decision, and may also address the issue of "substantial prejudice" as a result of the delay in filing of the Application.

b) The applicant is directed to provide such dates relating to the allegations contained in the first six paragraphs under the Association heading to the other parties in writing and to file that document with the Tribunal within 21 days of the date of this Interim Decision, failing which those paragraphs will be struck from the amended Application. If any of the dates predate February 4, 2008 (one year before the filing of this Application), the applicant may make new submissions as to why her delay in filing was incurred in good faith or is timely under section 34(1)(b). The respondent and the intervenor may reply to any submissions made by the applicant within 35 days of the date of this Interim Decision, and may also address the issue of "substantial prejudice" as a result of the delay in filing of the Application.

c) The applicant is directed to provide to the other parties in writing and to file that document with the Tribunal containing the names of the clients referred to in paragraphs 1 through 13 under the Association heading, within 21 days of the date of this Interim Decision.

d) The applicant is to provide to the other parties in writing and to file with the Tribunal particulars as to the adverse consequences that she alleges she suffered in connection with paragraph 13 under the Association heading, within 21 days of the date of this Interim Decision.

e) The portions of the Application (as amended) encompassed by the grievances referred to in paragraph 24 above are deferred pending the outcome of the arbitration proceedings relating to those grievances. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the arbitration process.

26I am not seized.