Krzewski v. Toronto Catholic District School Board, 2010 HRTO 2064

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Colleen Krzewski Applicant

-and-

Toronto Catholic District School Board and Jane Cramer Respondents

-and-

Canadian Union of Public Employees and its Local 1328 Intervenor

Interim Decision

Adjudicator: David Muir Date: October 8, 2010 Citation: 2010 HRTO 2064 Indexed as: Krzewski v. Toronto Catholic District School Board

1This is an Application filed on June 26, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2This Interim Decision concerns a Request for Order During Proceeding (Request) filed by the respondent Toronto District School Board (the Board) seeking an Order defining the scope of the Application having regard to the human rights complaint filed with the Ontario Human Rights Commission in August 2007. The respondent Board states that several of the allegations made in the complaint are untimely having occurred several years before the complaint was filed. The respondent Board also states that the applicant has attempted to expand the scope of the Application by the filing of a “Statement of Complaints” on June 30, 2010 which includes untimely and new allegations that were not included in the complaint.

3The individual respondent concurs with the respondent Board’s Request.

4The intervenor also supported the respondents on this point.

The substance of the complaint

5In her complaint, the applicant alleges that her right to be free from discrimination on the basis of race, colour, ancestry, ethnic origin, place of origin and disability in the workplace was infringed by the respondents. The applicant also alleges a reprisal. The allegations, largely involving alleged offensive comments by the individual respondent, which are said to have occurred in June, September, November and December 2003, February 2004 and March 2007.

6The particulars of the allegations are as follows:

a. September 2003: The applicant alleges that the respondent Cramer and the caretaker often got together and made racial jokes in front of her. The applicant alleges that the respondent Cramer also made comments about parents who were black or south asian that were offensive and racist.

b. November 2003: The applicant alleges that her husband attended the workplace with tea and a bagel for her. The applicant states that her husband is white. The applicant alleges that the respondent Cramer said, when introduced to him: “Are you delivering and serving her? Shouldn’t it be the other way around? You should be the master and she should serve you?”.

The applicant alleges that after this incident the respondent became more bold and made more comments such as “I don’t know why these pakie people should have to wear the bourka in our country”. The applicant alleges that the respondent Cramer’s favourite line was “If they don’t like it here they should go back to where their (sic) came from.”

c. December 2003: The applicant alleges that the respondent Cramer said after overhearing the applicant say that she liked brown chocolate, that the applicant was brown because of all of the chocolate she had eaten.

d. February 2004: The applicant alleges that after an interaction with a parent whose English was not good, the respondent Cramer said “I don’t know why we allow these people into the country if they can’t speak English, these immigrants think they can come here and take advantage of us, if it was left to me I would not allow them to register in our school, in fact I would send them back to where they came from.”

The applicant alleges that the respondent Cramer made offensive and racist remarks about a bus driver, who was black, who was seen in the school by the respondent. The applicant alleges that the respondent Cramer challenged the man after he had asked permission to use the washroom and after being satisfied that he had permission said to the applicant, “Well I didn’t know who he was, they all look like criminals to me.”

e. March 2007: The applicant alleges that the respondent was very rude to a black parent who responded by challenging the respondent Cramer. The applicant alleges that the respondent Cramer became furious and after she left said to the applicant: “The nerve of that black bitch to talk back to me, I’m going to kick her and her illegitimate black bastard to the curb.”

The applicant alleges that later the same day the respondent Cramer asked her to record what had transpired earlier. The applicant alleges that Cramer attempted to record that the parent had threatened her with a gun and was screaming at her.

The applicant alleges that when she declined to do so, saying that she had not heard those things, the respondent Cramer began screaming at her – “Colleen you have to back me up. How else am I going to get a restraining order against her? I could have this black bitch thrown in jail and I could make her life a hell, you are an employee of the Board and you are to do what I say” The applicant that she continued to refuse to comply and was told she had until the following day.

7This ends the narrative in the complaint form, although the controversy continued and it appears that prior to the complaint being filed with the Commission on August 4, 2007 the applicant was subject to discipline by the employer on some basis.

8The applicant relies as well on allegations made in a Statement of Complaints which was filed in June 2010, are broad and general. In this document the applicant alleges that the kinds of incidents described as occurring in specific months now occurred on a daily basis over the whole course of the applicant’s working with the respondent Cramer, from June 2003 to December 2008. She also reiterates the allegations made in the complaint and alleges that the conduct of the respondent Cramer caused her to become ill.

9Only very limited particulars are provided in the Statement of Complaints. In some cases the applicant simply refers the reader again to the complaint form for particulars of the general allegation.

10The applicant makes the following specific fresh allegations in the document:

a. On a regular basis the weekly newsletter of the school contained ethnic or cultural jokes. The one example provided by the applicant is undated and includes two “shaggy dog” bits of doggerel one involving Mahatma Ghandi and the other a Bhuddist.

b. The respondent Cramer sent out emails to all staff boasting about her ethic background and her family. The examples provided include an Irish blessing circulated by the respondent in March 2007 and an imprecisely dated copy of the weekly newsletter which includes a reference to the fact that the son of the respondent turned 19 years old that week.

c. The applicant alleges that the respondent Cramer removed her name as school secretary from the weekly newsletter. The applicant alleges that both before and after the respondent’s tenure her name had appeared on this document. The one example where her name does not appear provided by the applicant post- dates the complaint by several months.

d. The applicant alleges that the respondent Cramer refused to purchase an ergonomic chair recommended for her. The applicant alleges that the respondent Cramer said to her “I was lucky to have a chair at all, people in your country sit on the floor”. The applicant alleges that it was not until the respondent was removed from the school that the proper chair was purchased for her. The applicant does not state when this incident occurred however the documentation provided suggests that it was after March 2006.

e. The applicant alleges that she worked overtime and while the respondent Cramer signed off on her hours, she never received the appropriate overtime pay. The only further support for this allegation are two documents dated well after the complaint.

f. The applicant alleges that the respondent Cramer was rude and abrasive in her interactions with her, but treated Caucasian secretaries with respect.

g. The applicant alleges that on April 7, 2007 she was unfairly criticized for not performing her duties adequately. The applicant alleges that she attempted to explain that the respondent Cramer’s complaint was motivated by the applicant’s refusal to comply with Cramer on March 27 but was ignored. The applicant alleges that she was disciplined by the respondent employer.

h. The applicant alleges that her Union refused to take her side and discriminated against her.

i. The applicant alleges that after her refusal to comply with respondent Cramer’s request on March 27, the harassment escalated. The applicant alleges that the racial remarks increased and became a daily occurrence. The applicant alleges the following specific examples of such behaviour:

i. She was asked to be at the respondent’s side every minute of the day;

ii. Not allowed to leave for lunch;

iii. Serve the respondent tea several times a day;

iv. Asked to complete tasks in impossible time frames;

v. Take messages unrelated to her daily job;

vi. Harassed by the requirement of a doctor’s note for every minute of absence.

Scope of the Complaint

11I will first deal with defining the subject matter of the complaint and determine which of the new or fresh allegations can be considered as part of the complaint and then will deal with the delay issue.

12An Application under section 53(5) must be based on the complaint filed with the Commission. Rule 12 of the Rules of Procedure for Transitional Applications provides as follows:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and,

b) the Commission complaint file number.

12.3 Section 53(5) Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission.

12.4 Where an Applicant wishes to add parties, combine two or more complaints to be dealt with together as a single application, or, having regard to Rule 12.3, amend the complaint, the Applicant may identify any such requests in their Application.

13Generally speaking a section 53(5) application will be limited to the subject matter of the complaint made to the Commission and the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure to the fair, just and expeditious adjudication of the application. The applicant has not filed a Request for Order seeking an amendment of the Application, however, I find it is significant in this regard that the complaint was amended by the Commission by the addition of a number of grounds, notably disability and reprisal. I have considered those amendments in attempting to understand the essential nature of the complaint.

14The substance of the complaint is that the applicant was allegedly witness to and to a lesser extent herself subject to racial stereotyping and exposed to racialized discourse in working with the respondent Cramer.

15I find that most of the allegations made in the Statement of Complaints are properly included in the Application because they are contemplated by the complaint as amended by the Commission. In particular the allegations in paragraphs 10(a) to (d) and (f) appear to be related at least conceptually to the essential nature of the complaint. The allegation in paragraph (d) may also be related to the ground of reprisal added by the Commission. Similarly the allegations in paragraphs 10(g) and (i) are of a similar nature and if timely are contemplated by the complaint. The allegation in paragraph (e) may also be considered as a reprisal although this is entirely unclear at this point.

16The allegations in paragraph 10(f) are not part of the complaint as they relate to the alleged conduct of the applicant’s trade union which is not a respondent in this Application.

Delay

17Are the allegations in the complaint and the particulars provided in the Statement of Complaints timely? The delay at issue here relates only to the ability of the Tribunal to deal with the allegations in the complaint said to have occurred beyond a one year time period prior to its filing in early August 2007 and not the delay since that time.

18Section 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.

34(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.

19The Tribunal has interpreted these provisions as requiring that the applicant have filed her human rights complaint at the Ontario Human Rights Commission within one year of the incident or the last of a series of incidents which it is alleged violated the Code. See: Boncori v. TRW Canada 2009 HRTO 564. The Tribunal has also found that there can not be significant gaps in time between incidents in a series for it to be considered a series for purpose of the section. See Nurse-Bennett v. Kerry’s Place Autism Services 2010 HRTO 1223.

20Finally, the Tribunal may only deal with an application filed more than a year after the incident, or last of a series of incidents, if it is satisfied that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

21The applicant’s submissions on delay largely related to events after she abandoned her complaint at the Commission and transferred it to the Tribunal pursuant to section 53(5) of the Code. As indicated earlier the timeliness issue we are concerned with relates to the delay prior to the filing of the complaint with the Commission in August 2007 – in particular the significant gap in time between some of the allegations in the complaint. The applicant’s primary response in this regard that the kinds of incidents were ongoing and occurred on a daily basis it is said, culminating in the events of March 2007 and its aftermath. There was no other explanation offered in respect of the temporal gap in the series of incidents set out in the complaint.

22I am not satisfied that all of the incidents complained of in this Application can be considered a series of incidents within the meaning of section 34(2). As I interpret the section where a series of events is relied upon, any significant gap in time between incidents in a series would in most cases interrupt the series in the absence of evidence of the considerations set out in section 34(2). In this case there is a gap of at least two years between the particularized incidents described in the complaint and Statement of Complaints.

23The allegations in the complaint related to specific events in 2003 and 2004 are untimely and will not be heard. Similarly the allegation in paragraph (c) is untimely it having occurred in mid-2003. I find the gap between those events and the first particularized subsequent event, the dispute over the ergonomic chair which occurred sometime after March 2006 is simply too great for them to be considered as elements of a series of things.

24I also find that there is no good faith explanation for this delay. I do not accept the applicant’s submission that these incidents were ongoing and occurred on a daily basis. More than mere assertions are required at this late stage of the proceeding. I note that despite the bald allegation that the kind of behaviour complained of was ongoing the very few particulars provided are scattered, for the most part equally untimely and extremely limited. In other instances, such as for example the allegation that Cramer used the school newsletter to note that it was her son’s birthday, it is entirely unclear how such an event is related to the other complaints of quite reprehensible racial stereotyping and discourse that are at the heart of the complaint or how such an event might be considered to support a violation of the Code.

25There is otherwise no explanation offered for the delay other than the applicant “sucked it up” and endured what was said to be ongoing harassment. There is no indication that the applicant was prevented by illness or other cause beyond her control from filing her complaint with respect to events in 2003, 2004 etc. prior to August 2007.

26I find that the incidents described as having occurred between March 2006 and August 2007, the date the complaint was filed are timely and can be dealt with by the Tribunal. I find that the allegations with respect to the provision of an ergonomic chair to be timely being within one year of the so called culminating incidents alleged to have occurred in March 2007. Similarly the allegations contained in paragraph 10(a), (b), (e), (f) and (i) to the extent that they occurred within the time period framed by the date the complaint was filed and March 2006 are timely and can be dealt with at the hearing. In this regard the applicant is required to provide further particulars of these alleged incidents if she intends to rely upon them. The allegations in paragraphs 10(d) and (g) are timely on their face and will be dealt with.

27The allegation in paragraph 10(h) relates to the conduct of the union which is not a respondent in this Application.

Directions

28The applicant will deliver and file within 30 days of the date of this Interim Decision any further particulars with respect to, in particular but not limited to, the timing the incidents outlined in the complaint and the Statement of Complaints that I have determined can be dealt with in this proceeding as set out above.

29I am seized of this case.