DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bebe DeFreitas

Applicant

-and-

Ontario Public Service Employees Union and Warren Thomas

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: October 18, 2010

Citation: 2010 HRTO 2049

Indexed as: DeFreitas v. Ontario Public Service Employees Union

1This is an Application filed under s. 34 of the Code filed on April 6, 2010 (the “new Application”). A prior Application previously had been filed by the applicant pursuant to the transitional provisions of the Code, which is dated February 12, 2009 (the “transitional Application”).

2The purpose of this Interim Decision is to address the respondents’ request that certain allegations in the new Application be dismissed for delay pursuant to s. 34 of the Code. I will also address the next steps for proceeding with these matters.

3In my previous Interim Decision in this matter, 2010 HRTO 618 dated March 22, 2010, I had ruled that allegations which post-dated the complaint underlying the transitional Application were not properly within the scope of that proceeding, and had stated that the appropriate course of action to raise post-complaint allegations was for the applicant to file a new application under s. 34 of the Code, which she did on April 6, 2010.

4I subsequently issued a Case Assessment Direction dated May 4, 2010, directing the respondents to file their Response in accordance with the Tribunal’s Rules and also to raise any objections to the allegations raised in the new Application. The respondents did so on May 20, 2010, which included submissions that a number of the allegations raised by the applicant in her new Application be dismissed for delay.

5As the Response was not regarded as complete by Tribunal staff due to the respondents’ failure to attach certain OPSEU policies to their Response, the Response was not delivered to the applicant until July 8, 2010. In accordance with the Tribunal’s Rules, the applicant was given 14 days to reply to the respondents’ Response, which she did on July 22, 2010 and which included her response to the respondents’ submissions regarding delay.

6The respondents have requested that I not consider the applicant’s submissions in response to their request for dismissal for delay, on the basis that she did not adhere to the schedule set out in my Case Assessment Direction dated May 4, 2010. In my Case Assessment Direction, I stated that the applicant was to serve and file her Reply and her submissions in response to any preliminary objections raised by the respondents “within 14 calendar days of receiving the respondents’ Response and any preliminary objections”. While I understand that the respondents served their Response and submissions directly on the applicant at the time this material was filed with the Tribunal, the Tribunal’s process under the new Rules contemplates that the Response will be served on the applicant by the Tribunal only after it is considered to be complete by Tribunal staff. This was not done until July 8, 2010 and the applicant complied with the 14 day deadline for filing her Reply and responding submissions thereafter. Accordingly, I will consider the applicant’s responding submissions in addressing the delay issue.

Dismissal for Delay

7The new Application raises a number of allegations as follows:

a) That on May 15, 2008, the respondents engaged in an act of reprisal against the applicant by declining to participate in mediation as part of the grievance process;

b) That in July 2008, the respondents refused to allow the applicant to perform work encompassed in her position by failing to assign her to accompany and assist racialized OPSEU members in mediation sessions scheduled from July 21, 2008 to August 1, 2008, which the applicant alleges is another act of reprisal and marginalization;

c) That in July 2008, the respondents overlooked and denied the applicant the opportunity to perform the duties of her position by failing to assign her to assist OPSEU’s Workers of Colour Caucus in addressing concerns about the Della Chelsea Hotel’s Caribana policy or to involve her to liaise or work with a lawyer who was providing a legal opinion on this issue, which the applicant alleges was another act of differential treatment and reprisal;

d) That on or around October 22, 2008, the applicant was told that the personal respondent had said, “the next person who calls me a racist will be fired;

e) That on or around March 10, 2009, in response to her report recommending that OPSEU consider filing a Tribunal application to address concerns about the Hospitals of Ontario Disability Income Plan (“HOODIP”), the applicant was told that OPSEU’s policy is not to pursue complaints at the Tribunal;

f) That in March 2009, the respondents investigated a complaint against the applicant made by a CUPE member concerning her alleged lack of response to his telephone call regarding his partner’s (an OPSEU member) layoff from work, which the applicant alleges subjected her to a different standard of work expectations because of the filing of a human rights complaint;

g) That during the period from December 2007 to the present, the applicant was overlooked for promotional opportunities to management positions, which were assigned to white employees and for which the applicant shared the same classification and was no less qualified, which the applicant alleges is part of a pattern of systemic discrimination against employees from racialized communities;

h) That in or around July 2009, the applicant was overlooked for a temporary promotional opportunity as an acting Supervisor in her geographical area of work despite her sharing the same classification as the appointed employee and being no less qualified, which the applicant alleges is part of a pattern of systemic discrimination and another act of reprisal;

i) That on or around March 1, 2010, the applicant was overlooked for another temporary promotional opportunity for a Supervisor, Staff Relations position, for which she shared the same classification as the appointed employee and was no less qualified.

8The respondents acknowledge that the last two allegations relate to incidents that occurred within the one year period prior to the filing of the new Application. However, the respondents submit that the remaining allegations should be dismissed under s. 34(1) as not forming part of a “series of incidents” that extends to and includes the timely allegations, and on the basis that the applicant has not established that her delay in raising these allegations was incurred in good faith and that no substantial prejudice will result to the respondents as a result of the delay. I will address each of these issues in turn.

Series of Incidents

9Pursuant to s. 34(1)(b) of the Code, an applicant is considered timely if it is made within one year following the last incident in a “series of incidents’. Accordingly, if the earlier allegations raised in the new Application can be regarded as forming a “series of incidents” that extends to and includes the timely allegations, then the entire Application would be regarded as timely within the meaning of s. 34(1)(b) of the Code.

10The respondents rely upon this Tribunal’s decision in Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143 to submit that this Tribunal “has narrowly defined when the subject conduct should be understood as forming a series”. I do not believe that the Diler case supports this submission. In that case, one of the allegations related to the closing of the applicant’s file by her psychiatrist, which occurred in May 2008 and was within the one year period prior to the filing of her application. However, the applicant also sought to raise allegations about disparaging remarks alleged to have been made by her psychiatrist during appointments that occurred sometime prior to her last appointment in October 2006. The Tribunal held that these alleged remarks could not be regarded as forming a part of a “series of incidents” that extended to the closure of her file, as “the applicant fail[ed] to make any connection between these alleged slurs and the closure of her file more than a year and half later”: see para. 8.

11More recently, in Baisa v. Skills for Change, 2010 HRTO 1621, I did say that “in order to constitute a “series of incidents” within the meaning of s. 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues”: see para. 22. In that decision, I found that an issue relating to a pregnant employee’s entitlement to use sick benefits as opposed to vacation days for a pregnancy-related illness which had occurred two and a half years prior to the subsequent issues relating to an allegation that the applicant experienced reprisal as a result of the filing of an internal complaint did not form a “series of incidents” within the meaning of s. 34(1)(b).

12The respondents characterize the two timely allegations as being allegations relating to promotional opportunities, and take the position that these allegations cannot be regarded as part of a series of incidents with the prior allegations about the applicant’s work assignments and other matters. In my view, I do not believe that s. 34(1)(b) should be interpreted so narrowly. The underlying theme of the applicant’s allegations is that she experienced marginalization as a racialized employee and/or reprisals for having filed a human rights complaint against the respondents. This theme includes her allegations that she was marginalized and reprised against by not being assigned specific work assignments within the scope of her job duties, by allegedly being subjected to an investigation when others weren’t or wouldn’t have been, and by being denied promotional opportunities. In my view, all of the allegations raised by the applicant in the new Application share this common theme, which provides a sufficient connection or nexus between these allegations to support a finding that they all form a “series of incidents” within the meaning of s. 34(1)(b).

13Accordingly, I find that all of the allegations raised in the new Application form part of a series of incidents that extends to and includes allegations within the one year period prior to the filing of the new Application. As a result, the respondents’ request to dismiss allegations in the new Application which relate to events prior to one year before the Application was filed is denied.

Good Faith and Substantial Prejudice

14As I have found that all of the allegations raised in the new Application form a series of incidents that extends to and includes allegations within the one year period prior to the filing of the new Application, s. 34(2) of the Code does not apply and no issue arises as to whether any delay was incurred in good faith or whether any substantial prejudice would be caused to the respondents.

Next Steps

15As stated in my Case Assessment Direction dated May 4, 2010, the next step in the process is for me to consider the applicant’s request for consolidation of the new Application and the transitional Application.

16Within 14 days of the date of this Decision, the applicant shall serve and file submissions in support of her request for consolidation.

17Within 14 days of receipt of the applicant’s submissions, the respondents shall serve and file submissions in response.

18Within 7 days of receipt of the respondents’ submissions, the applicant shall serve and file any reply.