HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Kovios

Applicant

-and-

Convergys CMG Canada

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 29, 2010

Citation: 2010 HRTO 1996

Indexed as: Kovios v. Convergys CMG Canada

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 14, 2010, alleging reprisal and discrimination in employment on the basis of disability. There are two sets of allegations in her Application. The first set deal with incidents which the applicant alleges occurred during her employment with the respondent; the second set deal with the respondent’s refusal to re-hire her.

2In its Response, the respondent argues that the portion of the allegations dealing with the applicant’s employment with it is time barred and should be dismissed. The applicant opposes this request.

DELAY

3Section 34 states, in part:

(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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

5The parties are in agreement that the applicant resigned from her position with the respondent on August 12, 2008. She did not file her Application until 21 months after she resigned her employment. In the intervening period, the applicant applied for a job with the respondent in July 2009. It is not entirely clear when the respondent made the decision not to re-hire her, but it notified her in writing on September 21, 2009 that she was not being offered a position in view of previous employment with the company. In any event, the respondent acknowledges that this aspect of her Application is timely.

6The respondent argues that the two sets of allegations are discreet and that the subsequent decision to not re-hire the applicant was not the most recent incident of a “series of incidents” that included interactions with the applicant during her period of employment with the respondent. The applicant argues that the decision to not re-hire her was based on considerations arising from her previous employment and is not separate and distinct from the events that gave rise to her resignation.

7The applicant alleges that she suffers from sensitivities to scents that required accommodation. She alleges that during the latter period of her employment with the respondent, she approached her team leader and other members of management about problems with scents she was experiencing in the workplace, and that they failed to appropriately respond to her concerns, which led to her being absent from work more often.

8The respondent alleges that the applicant only advised management of her sensitivities to scents on two occasions, and that it was not aware that this was an issue for her, and does not accept that its alleged failure to accommodate resulted in her absences. It does state that it based its decision to not re-hire the applicant on her record of absenteeism.

9At this stage, it is not possible for the Tribunal to evaluate the relative merits of the parties’ positions. Based on the material found in the Application and Reply, it appears that the applicant is arguing that the respondent’s failure to accommodate her disability led to her absences from work and eventual resignation. In order for her to challenge the basis for the respondent’s decision to not re-hire her, she may need to lead evidence concerning the respondent’s treatment of her during her employment.

[10] Given the applicant’s submissions I am not satisfied it is plain and obvious that the allegations concerning her employment are not part of a series of incidents that also included the respondent’s refusal to re-hire her. Accordingly, the Tribunal will continue to deal with the allegations of discrimination in her Application dealing with her employment with the respondent.

[11] This is not a final decision regarding the Tribunal’s jurisdiction in respect of this portion of the Application. The adjudicator assigned to hear the merits of the case may re-visit this question as part of the exercise of discretion to manage the case.

[12] I am not seized of this matter.