Haynes v. Progress Place Rehabilitation Centre, 2010 HRTO 2080

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juliette Haynes

Applicant

-and-

Progress Place Rehabilitation Centre (Metropolitan Toronto) Inc.

Respondent

DECISION

Adjudicator: Jim Dimovski

Date: October 14, 2010

Citation: 2010 HRTO 2080

Indexed as: Haynes v. Progress Place Rehabilitation Centre

AppearanceS BY

Juliette Haynes, Applicant ) Self-represented

Progress Place Rehabilitation Centre ) Richard J. Worsfold, (Metropolitan Toronto) Inc., Respondent ) Counsel

1This Application was filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on August 20, 2006, and abandoned upon filing the Application with the Tribunal.

2The applicant alleges that she was subjected to discrimination on the basis of her age, ancestry, colour, creed, disability, ethnic origin, family status, marital status, place of origin, race, the receipt of public assistance, breach of settlement, record of offences, reprisal, sex and sexual solicitation in the social areas of services, accommodation (housing), contract, employment and vocational associations.

3The respondent Progress Place Rehabilitation Centre (Metropolitan Toronto) Inc. (“PPRC”) denies all the applicant’s allegations.

4The PPRC is a psychological rehabilitation centre which provides a full range of social, vocational, housing and recreational opportunities to people with severe and persistent mental disabilities. People who access the services available at PPRC become “members” and participate in programs at the PPRC “clubhouse” located in Toronto. PPRC has several hundred members, a hundred or more may be on its premises at any given time.

5The hearing of the Application occurred on February 18, 2010 in Toronto. At the hearing, I heard testimony from the applicant and the respondents’ witnesses: Brenda Singer, Executive Director, Caroline Hughey, former Financial Administrator, Andy Lenio and Kevin Makata. An earlier Interim Decision, 2010 HRTO 132, denied the respondents’ adjournment request so that it could ensure Marla Newman’s testimony was heard at the hearing.

6It was not disputed that at the time she filed her complaint with the Commission, the applicant had been a member of PPRC for approximately 10 years. She also had participated as a volunteer.

7The applicant was born in Jamaica and self-identifies as Black and Jamaican. The applicant did not want to disclose her disability in the course of her hearing. In any event, the respondents did not dispute that the applicant is a person with a psychological disability.

The Allegations

8The applicant makes the following allegations:

• The PPRC invites members to attend conferences around the world. Approximately 10 years prior to filing her complaint, the applicant attended such a conference with a staff member, Caroline Hughey. The applicant alleges during that trip, Ms. Hughey’s partner showed inappropriate “interest” in her and not to the other members attending. She states because of this PPRC did not invite her to any subsequent conferences.
• In 2004, the applicant became a volunteer at PPRC. As a volunteer, she alleges that vital information was kept from her that would have enhanced her “career, marketability, and save[d] [her] hardship and suffering in an environment that was not equipped to” accommodate her. She alleges she was “bumped” off jobs.
• While a volunteer, the applicant alleges that she heard “racial jokes” directed towards her. On August 11, 2006, she heard a joke “under the auspices of ‘salt and pepper’ shakers”.
• The applicant alleges that PPRC staff and members ostracized, alienated, intimidated and manipulated her. In addition, she alleges staff sexually harassed her.
• The applicant alleges PPRC staff members were combative in mannerism and in the method they communicated with her. For example, she states they would leave “a meeting when a certain cultural group [wa]s making a point of repeating the same thing over and over”. She also alleges that on one occasion, a staff member who should have known her, rushed up to her while she was walking through a hallway and asked “Are you a member here, where are you going?” She states this occurred due to her race and disability.
• She alleges PPRC staff member, Marla Newman, disclosed information about her accommodation needs to other staff and members. She states she approached Ms. Newman in order to request that she disclose certain information to the Ontario College of Art and Design (OCAD) so she could obtain ‘hardware’. She admits Ms. Newman asked her to sign a disclosure form. OCAD provided her with a computer and that she asserts that she “did not reveal this decision” to Ms. Newman. She alleges that Ms. Newman told members that she had received a computer. She asserts Ms. Newman breached her confidentiality and abused her power and authority.

ANALYSIS

9There is no evidence the applicant was in a contractual relationship with the respondent or that the respondent is a vocational association.

10While I am satisfied the respondent provided services to the applicant as a PPRC member after listening to her testimony, I have concerns whether her allegations were related to her employment as a volunteer. A volunteer could be considered to be in a relationship in respect of employment. In any event, it is unnecessary to resolve the issue given my conclusions set out below.

11A claim of discrimination on the basis of receipt of public assistance can only be made in respect of accommodation. See s.2 (1) of the Code. There is nothing in the complaint as originally drafted or provided by the applicant during her testimony to connect this area with any of her allegations of discrimination. As such, I dismiss this aspect of the Application.

12The applicant’s allegation of breach of settlement relates entirely to Ms. Newman’s actions with respect to disclosure of her personal information. Section 45.9 permits an applicant to seek to enforce a settlement of matters brought to the Tribunal as applications or, pursuant to section 54, those which were settled at the Commission. The issue involving Ms. Newman was not the subject of either a settled application or a complaint. As such, I have no jurisdiction to consider this aspect of the Application and it is dismissed.

13A claim of discrimination on the basis of record of offences can only be made in respect of a conviction for an offence in respect of which a pardon has been granted or an offence in respect of any provincial enactment. See s. 10(1) of the Code. Neither circumstance is raised on the facts before me and, as such, I have no jurisdiction to consider this aspect of the Application and it is dismissed.

14The applicant could not particularize or provide any details of her allegations that she was subjected to discrimination on the grounds of age, ancestry, creed, family status, marital status or reprisal. Indeed, there is nothing in the complaint as originally drafted or in any materials provided to the Tribunal to connect these grounds to her allegations. The applicant was equally unhelpful. At one point, she admitted that she only cared about the allegations against Ms. Newman. As such, I am unable to find the applicant has met her burden of proof with respect to these allegations and, therefore, they are dismissed.

15There are details which might support the allegations based on the remaining grounds of disability, ethnic origin, place of origin, race, colour, sex and sexual solicitation. I understand the applicant believes she has been treated unfairly by the respondent. The Code does not provide a remedy for every unfairness experienced by an applicant. The applicant bears the burden of showing whether her allegations, if accepted as true, would support a finding that the Code has been violated. If she is able to do this the Tribunal will then require an explanation from the respondent.

16After reviewing all the evidence and considering the parties’ submissions, I find that the applicant was not subjected to discrimination on any basis as set out in her Application. My reasons are enumerated below.

Was the refusal to invite the applicant to attend Conferences discriminatory?

17The applicant states she was not invited to further conferences because Ms. Hughey’s partner showed ‘interest’ in her. I understand this allegation to be either a claim that the interest in her was sexual and this had led either to differential treatment on the basis of sex or the denial of a benefit for refusal of a sexual solicitation or advance.

18This allegation relates to an event which occurred approximately 10 years prior to filing her Commission complaint. As such, there is an issue as to whether the Tribunal has jurisdiction.

19Section 34(1) of the Code states if a person believes that any of his or her rights under Part have been infringed, the person may apply to the Tribunal for an order under s. 45.2,

(a) within one year after the incident to which the applicant relates, or

(b) if there was a series of incidents, within one year after the last incident in the series.

20Section 34(2) permits the Tribunal to accept an application filed after the expiry of the time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The applicant admitted that she did not complain about Ms. Hughey preventing her from attending conferences until she filed her complaint in 2005 – almost 10 years after her trip. The applicant testified that after Ms. Hughey had solicited her artwork for a 2005 fundraiser, then failed to return it to her, she became suspicious and in retrospect concluded that Ms. Hughey’s failure to return her artwork originated from the time Ms. Hughey’s partner showed “interest” in her those many years before.

22Since the applicant could not establish she had applied and been denied an opportunity to attend a conference the year prior to filing her Commission complaint, I am not satisfied that the criteria set out by s. 34(1) has been met. Thus, in my view, the remaining question is whether the delay was incurred in good faith and no substantial prejudice would result to any person affected by the delay?

23The concept of good faith has been reviewed by the Tribunal. In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal stated at para. 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer 2002 CanLII 44920 (ON C.A.), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra)

24Although the applicant’s perception of Ms. Hughey’s discrimination was crystallized in 2005, she admitted she made no inquires of anyone to determine the reason why she had not been approved for attendance at subsequent conferences. In my view, it is clear that the applicant did not exercise her due diligence in making inquires for approximately a decade. Accordingly, I am not satisfied that the applicant’s delay in filling this particular allegation as part of her allegation was incurred in good faith.

25While the applicant clearly believes that she was unfairly treated by Ms. Hughey, even if I had determined her delay was incurred in good faith, her allegation would have been dismissed. In her testimony, the applicant could not establish that she had applied for or been denied an opportunity to attend any subsequent PPRC conferences. The applicant also did not dispute the respondent’s claim that Ms. Hughey had at no time ever been on the selection committee which assessed and decided upon members’ requests to travel to such events

26Ms. Hughley testified that the applicant’s artwork was obtained for a fundraiser and there was no promise that artwork would be returned. In addition to denying that she knew her partner had shown interest towards the applicant, she denied that she had any authority over or had attempted to prevent the applicant from attending any conferences. The applicant’s artwork has since been returned to her.

27Other than her bald assertions, the applicant was unable to establish her claim that the unfair treatment she experienced was related to any protected ground – particularly sex or gender. Indeed, by her own admission, she could not establish she had ever been denied any opportunity to participate in a conference and that her artwork had not been returned because such a promise had not been made in its solicitation from the applicant. Accordingly, I am not satisfied the allegations against Ms. Hughley support an infringement of the Code.

Alleged Discrimination during the applicant’s participation in the Transitional Employment Program (TEP)?

28The applicant also believes she was subjected to discrimination during her participation in the TEP. Her Application did not connect this allegation to any particular protected ground, however, in her testimony the applicant noted this allegation related to her colour and place of origin. However, it is clear that the applicant believes all the protected grounds noted above have been infringed.

29Mr. Lenio, a Team Leader for PPRC, testified about the program. The TEP, Mr. Lenio noted, is available to club members, and is a program, which was designed for people with severe and persistent mental conditions to give them opportunity to gain self-esteem and social skills by working in the community. The TEP, with partners in business and industry, facilitates placing members into entry-level, part-time and time-limited positions which typically last 6 months.

30The applicant was unable, however, to clarify the ‘vital information’ she alleges was kept from her, or how the PPRC failed to accommodate her nor could she identify any transitional employment job she had been “bumped” from.

31During the course of her membership, the applicant had been placed in jobs through the TEP approximately 5 times. On August 3, 2005, the applicant finished her last TEP job placement. Mr. Lenio testified that job opportunities are posted for all members to see and that a job coach determines the best jobs for the various applicants. In this case, Mr. Lenio denied that there was any PPRC record which indicated that the applicant was denied TEP information, accommodation or “bumped” from jobs.

32The applicant was not able to establish the nature of the ‘vital information’ kept from her, specifically how PPRC failed to accommodate her or to identify a particular job she alleged she was ‘bumped’ from. During the course of her testimony, it became clear that her assertions all melded into one. The applicant believes that Ms. Newman, her job coach at the time, kept TEP job information from her which prevented her from obtaining a job and thus preventing her from obtaining an opportunity to make herself marketable and independent. However, aside from her bald assertions, she was unable to establish that she was denied information about job postings as a result of any protected ground. On the contrary, the evidence supports, which the applicant did not deny, that all the PPRC postings were posted in a newsletter available to all club members. Also, when pressed, the applicant admitted her frustration with Ms. Newman, her job coach, resulted from her questioning the applicant’s qualifications to perform certain job postings they had discussed.

33It was clear the applicant blames Ms. Newman for various wrongs. For example, she noted that Ms. Newman had shown her a lack of support after the death of another member and this changed her life by causing her irreversible damages and hardship. After the applicant permitted Ms. Newman to disclose her accommodation needs to OCAD, the applicant alleged that Ms. Newman violated her “trust and privacy” by telling club members she had received a free computer from the College.

34I am satisfied that the applicant’s assertions, with regard to Ms. Newman, are based on her perception and speculation. Indeed, in her Application, the applicant admitted that Ms. Newman had no knowledge of the accommodations provided by OCAD.

35Accordingly, I am not satisfied that the applicant has shown, that Ms. Newman abuses her power and authority or that this was related to a Code protected ground.

Differential Treatment by PPRC Staff?

36The applicant also alleged that she did not receive the same respect as ‘white’ members of the respondent. The respondent stated that they have a policy and a complaints process regarding discrimination. The respondent noted, which was not disputed by the applicant, that it had no record of the applicant making any such complaints until her complaint was filed with the Commission.

37While the applicant’s perception is that staff members “ostracized, alienated, intimidated and manipulated” her, I am satisfied that the applicant was unable to support allegations that she was subjected to any form of discrimination based on her race, place of origin, disability or any other protected ground. Again, she was unable to particularize the ‘racial jokes’ she had heard except for the one she alleged occurred on August 11, 2006.

38With regard to the one she alleges occurred on August 11, 2006, she was unable to explain how she understood it to have racialized content. Indeed, the applicant was unable explain who made the comment and the context in which it was made. I am satisfied that the applicant has taken isolated and associated words or phrases out of context and considered them inappropriate comments. For example, she noted that fruit punch was used in a conversation someone had with her; however, she could not recount the conversation to establish whether it was a comment that could be reasonably be known to have been an unwelcome comment related to Code-protected grounds. Further, the PPRC time sheets for August 11, 2006, do not support the applicant signed-in, and was present at the PPRC that day. Accordingly, I am not satisfied that the applicant established that there were inappropriate comments made that could constitute harassment under the Code.

39The applicant also failed to provide particulars regarding how staff members treated her differently due to any of the alleged grounds. In my view, after listening to the applicant’s bald assertions and admissions, after reviewing the documentary evidence, and the applicant’s testimony I place no weight on her version of events. As such, I am persuaded that she was asked whether she was a PPRC member, by a staff member she could not identify, due to security reasons. Indeed, the applicant acknowledged the reason PPRC asked for identification was related to security purposes. The basis of the applicant’s complaint was that the person who asked for her identification knew or should have known who she was and as such, her reasons for asking were not for security, but rather based on her colour or place of origin. However, the applicant could not name the person who she stated should have known her and did not persuade me it was a person that was so familiar with the applicant that asking for identification would not have been an objectively reasonable request related to the security of the respondent’s premises. In a similar vein, I am also not persuaded, since the applicant could not particularize and was unable to establish evidence, that staff members repeating information in the course of meetings to other members was related to her place of origin or race or to any other protected ground.

40In all the circumstances, since I am not satisfied that the applicant established she was subjected to any form of discrimination or harassment on the basis of a protected ground, I dismiss this Application.