Amindra Wanigasekera v. Hydro One Brampton Networks Inc., 2010 HRTO 2356

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amindra Wanigasekera

Applicant

-and-

Hydro One Brampton Networks Inc.

Respondents

Interim decision

Adjudicator: David Muir

Date: November 29, 2010

Indexed as: Wanigasekera v. Hydro One Networks

1This Application was filed 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”). The applicant alleges discrimination in employment on the basis of race, ancestry, place of origin, ethnic origin, colour and age.

2This decision deals with the parties’ further submissions related to the scope of this Application having regard to the allegations made in the human rights complaint which the applicant filed with the Ontario Human Rights Commission in February 2006 (the complaint) and which forms the subject matter of this Application. The particulars of the complaint describe events from 1998 (or earlier) to 2005 when the applicant left the workplace.

3This preliminary issue arises out of a Request for Order During Proceeding filed by the respondent. An oral hearing was held to consider this issue on July 5, 2010. In 2010 HRTO 1691 I dealt with some of the issues and required the applicant to particularize the complaint more fully. The primary focus of the dispute remains as it was the twofold concern of the respondents that many of the allegations made in the complaint are out of time; and that the applicant has with fresh allegations sought to improperly expand the subject matter of the complaint.

4The essence of the complaint underlying this Application and the overarching allegations which define its scope is contained in the following passage from the complaint.

Despite my years of loyal service and good performance, and good conduct I have been denied opportunities for employment promotion due to age and racial discrimination. I have also been harassed in a workplace consisting of a poisoned work environment. The discrimination and harassment I have experienced in my place of employment has been based on individual incidents in an environment of systemic discrimination, of discriminatory treatment and harassment, as well as on systemic discrimination, as reflected in the hiring and promotion practices within Hydro One Brampton. In the end, my employer has been setting me up to fail as part of the harassment.

5The applicant then made a number of specific allegations in the complaint as follows:

Denial of Promotions

a. The applicant alleged that he was denied promotions in August 1999, September 2002 and March 2005 on the basis of race and age.

b. That the applicant also experienced differential treatment by the respondent in the following ways:

1. Weekly performance reviews;
2. Severe checks on breaks and lunch times;
3. Changing the applicant’s lunch time;
4. Penalizing the applicant by revoking his flex hours;
5. Watching him from the car park;
6. Checking the applicant’s phone records and denying him the right to call home;
7. Ridiculing the applicant at gatherings.

c. The applicant alleged that the ongoing discrimination described above was further confirmed on March 18, 2005 by a supervisor, Tony Paul, who remarked that he would require a younger person than he for a new position, knowing that the applicant was two years older than the supervisor. The applicant stated that this made him feel eliminated from consideration for the accounting supervisor position which was filled in March 2005 (above).

Employer’s Handling of Discrimination Complaint

d. The applicant alleged that he complained about the promotion denials in writing on April 27, 2005, but the complaint was dismissed by the employer and the applicant suffered a backlash as a result. The applicant alleges that he was pressured to withdraw his formal complaint at a meeting on June 17, 2005.

Discrimination through Denial of Salary and Bonus

e. The applicant alleged that he was denied a salary increase and a bonus in June 2005 and made a complaint in writing about this. The applicant alleges that his complaint was not well-received and he was subject to further discriminatory treatment. The applicant alleges that after his formal complaint he was isolated and subjected to various subtle forms of discriminatory treatment such as questioning of his competence, excessive monitoring and suggestions that he was taking off days as sick days when he was not in fact ill.

Name Calling and Poisoned Work Environment

f. The applicant alleged that he experienced a poisoned work environment. Examples of this included alleged comments by other staff members that Brampton was too “brown” or that it had too many “brown rats”. The applicant also states that an event held in 2002 as part of a fundraising event for the United Way called the “red-neck games” contributed to this atmosphere. The applicant alleges that these things were not discouraged by management and led to feelings of exclusion and isolation on the part of employees from visible minority communities. The applicant also alleged that he experienced name calling by senior management. The applicant alleges that he was called “a dirty paki bastard”, “veggie”, “boy”, “brown baldie” and “dirty Indian”.

g. The applicant also alleged that the workplace was poisoned by a lack of racial, ethnic and religious diversity in the staff. The applicant alleges that the employer was insensitive towards what little diversity there was in the workplace and cites as examples the exclusive celebration of white or Christian cultural occasions.

h. The applicant alleges that many have made fun of his accent and his name and have made unwelcome remarks about the fact that the applicant fasts and about India. The applicant alleges that he felt unwelcome at group employee events.

Bullying Tactics by Management

i. The applicant alleges that he was subject to bullying by Jamie Gribbon on a continuous basis from 1999. The applicant alleges that this conduct included:

1. Constantly blaming the applicant for errors;
2. Placing unreasonable job demands upon the applicant;
3. Inconsistently applying rules in the workplace;
4. Constantly setting the applicant up to fail;
5. Threatening job loss;
6. Insults and put downs;
7. Discounting and denying the applicant’s accomplishments;
8. Socially excluding the applicant;
9. Marginalizing, belittling and questioning of the applicant’s competence;
10. Engaging in verbal altercations with the applicant;
11. Stealing credit for work performed by the applicant;
12. Disparate distribution of workload;
13. Unwarranted “performance” memos;
14. Denial of vacation time;
15. Aggressive behaviour and scape-goating of the applicant.

Missing Performance Evaluations

j. The applicant alleges that a number of performance evaluations have disappeared from his personnel file.

The Investigation of his Complaints by the Respondents

k. The applicant alleges that the investigation of his complaints conducted in 2005 on behalf of the respondent employer in response to his complaints was full of inaccuracies and that statements made by other employees contained in the final report were themselves a type of harassment. The applicant alleges that as a result of the errors in the report he became ill.

Discrimination and Refusal to Accommodate the Applicant’s Disability

l. The applicant also alleges the he experienced discrimination on the basis of a disability when he was admonished by the employer to reply to the investigation report referred to above, by reference to his being on a paid leave of absence due to illness.

6In 2010 HRTO 1691 I dealt with the respondents Request seeking the dismissal of elements of the Application that were untimely or were otherwise not included in the complaint. I concluded that the only particularized allegation occurring prior to June 2002, the allegation respecting a promotion in 1999 was out of time it being unconnected in time to the next events occurring in 2002. I also determined that some or all of the other allegations made might be considered a series of incidents if they had occurred between 2002 and 2005 but that in the absence of particulars for many of them it would be impossible to make any determination in that regard. Accordingly I directed the applicant to provide particulars of his allegations as follows:

1. The allegations in paragraph D [paragraph 5 b. above) of the complaint wherein the applicant alleges that he experienced differential treatment by the respondent in a number of ways including: weekly performance reviews; severe checks on breaks and lunch times; changing the applicant’s lunch time; penalizing the applicant by revoking his flex hours; watching him from the car park; checking the applicant’s phone records and denying him the right to call home.

2. All of the allegations in paragraph E and F (paragraphs 5 f., g. and h. above).

7The parties were then directed to provide their submissions on whether or not the allegations in the complaint as particularized could constitute a series of incidents within the meaning of section 34 of the Code.

8The applicant has provided further particulars. The particulars provided do appear to relate in most cases to the general allegations made in the complaint. However I note that some of the general allegations made in the complaint remain un-particularized. For example the allegation in paragraph 5 b. above that he was watched in his car in the parking lot is not mentioned in this new document and remains un-particularized.

9The respondents seek the following relief at this stage:

a. An Order striking certain allegations on the basis that they are out of time and do not constitute a series of incidents within the meaning of section 34(1) and/or the applicant has failed to provide the requisite particulars.

b. An Order that the Tribunal will provide the parties with a copy of the Application redacting those portions of the Application that the Tribunal has held to be untimely and/or inappropriately expanding the subject matter of the Application.

10The respondent states that the particulars provided are inadequate, include entirely new allegations which expand the subject matter of the complaint, and in any event they do not constitute a series of incidents within the meaning of section 34(1). The respondent also states that the particulars include a number of allegations said to have occurred prior to 2002 contrary to the prior Interim Decision in this case.

11Section 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.

(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.

12The Tribunal has interpreted section 34 of the Code in the context of a transitional Application as requiring that the underlying human rights complaint be filed with the Ontario Human Rights Commission within one year of the last alleged incident or within one year of the last of a series of alleged incidents. The complaint was filed in February 2006. The preponderance of the particularized allegations in the complaint occurred in 2005 and centred around what the applicant alleged was a discriminatory denial of a promotion in March 2005. There is no issue that this allegation is timely. Based on the date the complaint was filed, all of the allegations pre-dating February 2005 are out of time unless they are considered to be a series of incidents within the meaning of the section.

13The overarching intent of the section has to be in large part to ensure fairness between the parties both in ensuring that these allegations are brought forward expeditiously and equally that respondents need not respond to allegations from the distant past. However, the phrase “series of incidents” in section 34(1) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that human rights claims be brought forward quickly once the discriminatory conduct is identified.

14The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be shorter. The common sense meaning of a “series of incidents” suggests two or more thematically related or similar events occurring in temporal order or succession. It is also evident that it will often be difficult to draw bright lines around when an incident can be said to have occurred. An incident may itself be comprised of series of discrete events that happen over a (short) period of time. This may be a particular problem in transitional applications where an applicant is called upon to particularize an allegation for the first time many years after the fact. Accordingly some flexibility is required when considering the question of when an incident is said to have occurred.

15Similarly while I do not agree with the applicant that it is not appropriate to make these kinds of determinations on a preliminary basis and in the absence of an evidentiary record, at the same time a liberal approach should be taken at a preliminary stage in assessing the complaint and the particulars provided in order to avoid unfairness to the applicant in an overly rigid approach to what might be included in a series of incidents.

16The particulars the applicant has provided will be set out in detail below. At this stage I have removed from these particulars all references to other employees’ perceptions of their treatment by the respondent or the respondent’s workplace atmosphere as I find that they are alternatively an attempt to expand the scope of the complaint or are irrelevant. It is also, in my view, completely unfair to require the respondent to respond to these entirely new allegations many years after the alleged event and will exponentially expand the hearing time required if the respondent is called on to respond to these allegations at this late date. I also note that in his submissions in response to the internal investigation the applicant took the position that whether or not a workplace was poisoned should be a subjective and not an objective assessment – an environment that was poisoned for one racialized person may not be perceived in the same way by another similarly situated individual. There is some merit in this view. For all of these reasons I am not persuaded that it is necessary to the fair just and expeditious resolution of this matter to expand it to include the perceived mistreatment of a number of other individuals who have worked for the respondent employer in the past.

PRE-2002 ALLEGATIONS

17Despite the determination that the Tribunal would not consider any allegations respecting events prior to 2002 the particulars provided by the applicant refer to a number of events allegedly occurring between 1998 and 2002. The applicant has also raised new allegations that have never been raised before. For example the applicant alleges that on September 11, 2001 he overheard two employees of the respondent refer to the persons responsible for the terrorist attacks in the United States as being “Arab or brown fuckers” and that for the rest of the day and for a period thereafter he was looked at by his colleagues with hatred. These allegations appear no where in the complaint, nor do they appear to have been raised in the investigation conducted by an outside investigator at the request of the respondent employer. The persons who allegedly said these things have not been identified.

18Even if I had not already determined that there were no particularized incidents prior to 2002 which were properly included in this Application I would not have considered these allegations part of a series of incidents described in the complaint. Most of the fresh allegations are entirely new and are not even hinted at in the complaint and identify new individuals not previously identified. It is manifestly unfair to require the respondents to respond to entirely new allegations only particularized up to 12 years after they are said to have occurred.

2002 AND POST 2002 ALLEGATIONS

19With those preliminary deletions the particularized allegations of the applicant are now as follows:

2002 Allegations

a. The applicant alleges that he was mistreated by Mr. Gribbon a supervisor on May 27, 2002 at 10:00 a.m. when he arrived late allegedly as a result of picket line activity:

The applicant alleges that Mr. Gribbon approached him aggressively and threatened to fire him. Mr. Gribbon allegedly advised him that he should get in at 5:00 a.m. in the morning knowing that a strike was taking place. It is alleged that Mr. Gribbon said that he was documenting this and that he was going to put it in the applicant’s Human Resources file. The applicant alleges that Mr. Gribbon then advised him that as an immigrant he should be cognizant of the responsibilities when working in Canada and that this is not a third world hell hole.

b. The applicant alleges that at a staff meeting on June 6, 2002 Mr. Gribbon related with apparent approval a joke that his son made about Tiger Woods in which a black boy is being followed by stupid white boys and that’s called “Golf”.

c. The applicant alleges that the “Red Neck Games” conducted over a more than two week period as a United Way fund raising event created a sense of foreboding and acute anxiety for the applicant. The applicant alleges that it was suggested to him by Human Resources that these games were intended as a form of bonding amongst white employees.

The applicant alleges that on May 12, 2005, Tony Paul asked the applicant if he knew what the term “Red Neck” meant. The applicant alleges that the investigator advised him in 2005 that “Red Neck” was not an offensive term and that he being a South Asian should not be offended by such a term.

The applicant alleges that the “Red Neck Games” started with such fan fare and he found it obnoxious that such overtly racist themes were being discussed in the Human Resources department. The applicant alleges that employees (DR and LH) contributed heavily to the staging of the fund raising events.

The applicant also alleges that a new employee confided to him that he found the emails and photographs in connection with the games, particularly of one employee (LB in Coloured face and Black wig) as a pregnant South Asian woman, odious and unacceptable.

The applicant alleges that he felt particularly racially demeaned, humiliated and threatened throughout this particular week. The applicant states that this was most particularly the case on the afternoon of July 11th 2002 at the “Red Neck Food and Games”. The applicant alleges that the event lasted more than two hours and included many employees dressed in racially provocative costumes. The applicant alleges that he and most of the employees of colour did not take part in any of this and many were deeply offended by this type of behaviour. The applicant alleges that the white employees on the other hand took part in the event with the greatest of enthusiasm with the overt support and encouragement of management.

The applicant alleges that soon after the fundraising event the company culture took a turn for the worse, in that some of the employees like LB, RM, Jamie Gribbon, WS, SM, D and others who took part in the games became increasingly rude and demeaning in their interactions with the applicant.

d. The applicant alleges that on July 26, 2002 at 2:30 p.m. Jamie Gribbon called the applicant into his office and told him that he could be fired if he did not do a good job and that he was taking too long to complete tasks. Mr. Gribbon is alleged to have asked the applicant if age had anything to do with his taking too long to complete tasks. Mr. Gribbon allegedly asked the applicant what country he came from. The applicant alleges that Mr. Gribbon stated that the applicant was too old.

e. The applicant alleges that he was subject to weekly performance reviews beginning in July 2002 although there had never been any performance issues identified with his work. On the contrary the applicant alleges that he had received glowing reviews from his supervisor. The applicant alleges that he was the only employee subjected to weekly or bi-weekly reviews, and was also the only employee of colour in the department.

It is alleged that there had been very serious infractions of duty by other employees but these infractions such as penalty payments incurred due to neglect of duty, were simply ignored or laughed at when the applicant complained of differential treatment.

f. The applicant alleges that in July/August 2002 he made an appointment with MW, Executive director and Corporate Ethics Officer of the respondent on the advice of a lawyer. The applicant alleges that MW was sympathetic and said she would look into the matter.

g. The applicant alleges that on November 4, 2002 at 4:25 p.m. Mr. Gribbon falsely accused him of reading a novel at work.

2003 Allegations

h. The applicant alleges that in March 2003 he overheard hydro linesmen talking and one employee WS, said that there were too many “brown rats” in Brampton and it was better to move out of the community.

i. The applicant alleges that a Human Resources supervisor (KH) told him in July 2003 that he would not last long in the workplace if he complained about human rights issues. This employee later allegedly told the applicant that he was glad to be out of this workplace.

j. The applicant alleges that on August 18, 2003 at 3:20 p.m. he was sitting outside with three co-workers, GG, SG and RA. The applicant alleges that SG stated as she had on several occasions before, that people move out of Brampton and the Peel region because of the Sikhs and their temple noises and that they are really a violent and nasty bunch. The applicant alleges that later that day, RA told the applicant that in his opinion that these type of statements should not be made anywhere in a company like that and that it should be reported. Unfortunately, statements of this kind were common and systemic throughout the company.

k. The applicant alleges that in August 2003 he was required to work during the black out and did not get a day off with pay as all the other staff did. He alleges that Tony Paul in denying his request for an extra desk light said with some obvious satisfaction that the applicant should “make do with the current conditions and consider that to be the challenge you are confronted with”. The applicant further alleges that he was given a gift certificate for dinner at the Keg despite the respondents knowing that he was a vegetarian.

2004 allegations

l. The applicant alleges that in April 2004 he was subject to differential treatment. In that unlike all other management employees his salary did not increase when his hours of work increased. The details of which are described as follows:

The applicant was issued a letter with the 2003 salary rate per hour stated as ($31.41) whereas it should have read $35.90 per hour. (Salary $65,338/52 weeks X 35 hours) However with the intention of camouflaging the actual rate it was stated to be $31.41 per hour. ($65,338/52 weeks X 40 hours). The rate was deliberately reduced to reflect an increase (rather than a decrease) in rate for the year 2004. When the applicant‘s work week was increased to 40 hours per week, on April 7, 2004, all managers’ salaries were increased to reflect the extra 5 hours per week except his.

m. The applicant alleges that he was denied time off to attend a funeral in June 2004 as well as casual time off (time allegedly worked and accumulated for such occasions) to attend a religious ceremony at the Kingston Buddhist Temple.

n. The applicant alleges that he received a private & confidential letter from Roger Albert on July 30th 2004 confirming the differential payment - an extra 5 hours per week without extra pay (paragraph (l) above). The applicant alleges that he became distraught because he knew every white member of the management staff was paid for the extra 5 hours per week.

o. The applicant alleges that in November 2004 he was assigned full responsibility for this multi-million dollar international fraud case by Roger Albert and reported directly to him on all issues. Mr. Gribbon, and the Tony Paul instead of giving the applicant detailed instructions, stood aside and let the applicant the non-executive management accountant, handle every aspect of the case. The applicant alleges that he had heard that the senior executives of Hydro One Inc. had been commended and the applicant alleges that he also requested, quite mildly and in writing, a similar commendation from Roger Albert. The applicant alleges that he did not receive a response to his request.

p. The applicant alleges that in December 2004 he was denied a bonus despite an exemplary performance review. The applicant alleges that all other management staff were paid the bonus.

2005 Allegations

q. The applicant alleges that on February 24, 2005 T G and S G were upset over a comment he made advising that the country’s head of state, Queen Elizabeth, is a foreign woman and that all Indians, Pakistanis, Sikhs, Chinese and all coloured people have a right to live in Canada, build temples, and be elected as members of parliament. T G said it is alleged that if the applicant did not like it here then he should leave for that “third world shit” he came from.

r. The applicant alleges that Tony Paul chaired a meeting on March 18, 2005 and congratulated everyone in the department for the dedication and contribution during the year end closing and the annual audit. The applicant alleges that he then announced that the position of supervisor was open and stated clearly to everyone that management had in mind someone who could be able to replace him in 10 years.

The applicant alleges that he asked Mr. Paul afterwards if his comment was serious, because he was older than Paul and therefore would be out of contention. The applicant alleges that Mr. Paul replied that the management is simply being proactive and it had nothing to do with my age and ethnicity.

The applicant alleges that at about 4:30 p.m. he approached Mr. Paul in his office and asked him again if he meant what he said and advised that, if so, there would be no need him to apply for the position of supervisor. Mr. Paul is alleged to have said that he should do what he thinks should be done, and that he had nothing to do with it.

The applicant alleged that he discussed it with other staff and the consensus was that AD was a “shoe in” for the position. The applicant alleges that GG said that it was because of his ethnic background and age, and that “no employee of colour ever gets promoted at Hydro One Brampton”.

s. In April 2005 the department had worked hard to meet the month end deadline and the applicant had bought a dozen doughnuts as a sign of appreciation of the effort by the accounting team. Later Jamie Gribbon had walked into the department and had enquired from PM and SG and within earshot of GG (whose birthday it was). The applicant alleges that PM had said it was that it was the applicant’s birthday, but only in jest to which Mr. Gribbon is alleged to have replied that he must be celebrating his 80th birthday. The applicant interpreted this comment as implying that he was perceived as not being capable of performing to expectations and that he had lost the ability to function efficiently because of his age.

t. The applicant alleges that on May 12, 2005 Controller Tony Paul called him into his office to discuss the issue of the promotion and LH of Human Resources was also present. The applicant alleges that they wanted him to end his objections to their decision regarding the promotion and that Tony Paul strongly stated that he was not interested in his objections and that it is management’s decision and “that was that”. The applicant alleges that he then told Mr. Paul that he believed that he was not selected because of age and skin colour and that Mr. Paul reacted most obnoxiously to this and asked him if he was calling him a racist and that, if so, there would be consequences further down the road. The applicant alleges that Mr. Paul threatened that there is always a “flip side” to such assertions and that the management would take appropriate action against him.

u. The applicant alleges that in June 2005 he requested performance evaluations in regards to the denial of the promotion in 1999 and was told by Laurie Hamel, Hydro Brampton H.R., that the documents could not be found and that they might have been displaced. The applicant alleges that he insisted that they would be stored in the executive area and a day or two later he was handed the 1999 performance review only and not the others he had sought.

v. The applicant alleges that in June 2005 he was denied a day’s medical leave, and his pay for that day was docked. When the applicant protested afterwards, the Controller asked him to present a medical certificate for the day which was provided. The applicant alleges that the Controller loudly asked the applicant if any blood tests were performed and what the results were. The applicant alleges that he protested that he should not speak in this way within the earshot of all employees and wrote him a memo in regards to this. The applicant alleges that he did not receive a reply to his memo.

w. The applicant alleges that he had written an email to the new Supervisor, AD, with regards to a funeral he had to attend. It is alleged that AD had reservations about approving the time and was extremely upset that the applicant was willing to take the time to attend the funeral regardless of her approval. It is alleged that AD called the applicant into her office and spoke to him in an extremely loud and demeaning manner.

x. It is alleged that in June 2005 the applicant sent a letter to Roger Albert in which he set out concerns with respect to differential treatment and requesting Mr. Albert’s assistance.

y. It is alleged that the applicant was advised in writing by the Head Office Human Resources consultant SB, to attend a meeting on June 17, 2005, after he had previously protested attending such a meeting. The applicant alleges that at this meeting he was asked to recant his allegations of discrimination. The applicant alleges that this meeting was set up to assess the applicant’s reaction to the “Red Neck” games and the resulting racial implications. It is alleged that the applicant had complained at a meeting on May 12th, 2005 with respect to this matter. It is alleged that he was given a deadline of 8:00 a.m. on June 19, 2005 to withdraw his complaint.

z. The applicant alleges that he was subjected to bi-weekly performance evaluations starting in June 2005, soon after he had requested an explanation for not getting promoted for the third time.

aa. The applicant alleges that in June/July 2005 he had a meeting with Roger Albert who advised him that his senior managers, namely Jamie Gribbon, told him that the applicant was too old and that “old dogs cannot learn new tricks”. This was in reference to the new regulatory legislation deregulating Ontario Hydro.

bb. The applicant alleges that in July 2005, he requested vacation, which was denied. The applicant alleges that he was told by Mr. Gribbon that he should consider taking his vacation in the fall, mainly because of coverage issues, as most employees go on vacation in the summer. The applicant alleges that he was also denied requested vacation on many other occasions.

cc. The applicant alleges that Internal investigator, KB advised him as she walked with him to her office around 2:00 p.m., that he could get fired for making a complaint against management, especially with respect to issues regarding race and religion.

dd. The applicant alleges that in December 2005 he was told by Tony Paul that in the 2005 tax year the company was not allowing his professional dues as a tax benefit as was the case in all prior years. The applicant enquired from others licence holders whose professional fees were paid by Hydro One Brampton and it is alleged that all had their professional dues as a tax benefit for the tax year 2005 and, as such, the amount was allowed to be claimed as a tax deduction. The applicant allegedly also called Canada Revenue on December 30, 2005, and was advised that the agency had not changed its policy in regards to professional fees. The applicant alleges that no other professional licensed employee in the company was similarly penalized.

20The particulars as set out above are followed by a number of other allegations under the heading of “General”:

a. It is alleged that BS (an assistant of DB) frequently commented on how old the applicant was was. For instance, before the applicant left the office on August 22, 2005 BS was doing some work on the applicant’s computer. It is alleged that BS said that the applicant was “losing it” and “you are over the hill”. The applicant alleges that he frequently heard such comments from DB, BS, and DS.

b. It is alleged that employees would often send the applicant emails with various activities and photographs that depicted offensive racial stereotypes, including racially caricatured Asian women and First Nations’ people.

c. It is alleged that it was common for employees such as DB to speak to the applicant with an Indian Accent in front of other employees when answering the applicant’s internal phone calls, etc.

d. It is alleged that conversations in the cafeteria focussed on the current headlines were often inappropriate. If the headlines involved a racial minority, the conversations became racist. For instance, shortly after Federal M.P. Badhuria was expelled from the Liberal Caucus by Prime Minister, Jean Chretien, the applicant was called Badhuria by many employees in the cafeteria. Co-worker HS was referred to in a similar manner. It is alleged that a few years later two coloured women who work in the cafeteria, K and LJ, confirmed that the applicant’s observations were correct and that many employees talked only of race, religion and sports.

e. It is alleged that the term “brown rat” was commonly used at the company, especially with regards to discussions involving immigration issues.

21The applicant states that these particulars set out a narrative of ongoing discrimination based on the applicant’s race, ancestry, place of origin, ethnic origin, colour and age, as alleged in the initial complaint that was filed in February 2006. The applicant states that there is no significant temporal gap between the incidents and states that many of the incidents, including the use of racial slurs, are said to have occurred on an ongoing basis.

22The respondents state that all of the allegations set out in the complaint and as particularized which are said to have occurred more than one year prior to the date the complaint was filed ought to be dismissed. The respondents state that these allegations do not constitute a series of incidents because there are significant gaps between them and they are unconnected to each other in that they relate to separate and discrete incidents.

23While the allegations at the heart of the complaint relate primarily to three job promotions and mistreatment by one management employee, the complaint clearly articulates other more general issues of alleged marginalization and mistreatment of the applicant which he alleges created a poisoned work environment. I also accept the applicant’s submission that some of the more concrete allegations respecting mistreatment by the applicant’s supervisors in particular, as well as the allegations respecting denied promotions may be related to and only properly understood when considered with the allegations of a poisoned work environment.

24The applicant relied, correctly in my view, on the Tribunal’s decision in DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049:

The respondents characterize the two timely 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).

25There are significant remaining problems with some of the allegations made. However, the summary set out above does describe incidents in some temporal relation to each other, rarely more than 6 months apart, which are capable, if proven, of establishing a poisoned work environment as well as discrete violations of the Code in some instances. I note in this regard that the allegations become less frequent and are less connected to each from late 2002 into 2003 and it may be that after hearing the evidence it is concluded that some of the earlier allegations are untimely on the basis that the “series” was interrupted. However consistent with the liberal approach to be taken in considering these issues as a preliminary matter these allegations as summarized above appear to be capable of describing a series of incidents within the meaning of the section 34(1).

26The respondent does complain, rightly in my view, that some of the particulars are not particulars at all but bald assertions devoid of detail that cannot be responded to at this stage. For example the applicant alleges that employees would “often send [the applicant] emails with various activities and photographs that depicted offensive racial stereotypes, including racially caricatured Asian women and First Nations’ people”. This would include the allegation that employees called the applicant Bhaduria which is devoid of particulars and likely very dated as the events giving rise to the name calling occurred in the mid 1990’s. I find that several of the allegations described above, in particular several of those set out under the heading “General” at paragraph 20 above need not be responded to at this late date.

27However some of the other concerns of the respondent are not well founded. I do not agree for example that the applicant’s allegation that he was subject to weekly performance reviews from around July 2002 is not sufficiently particularized. Although the identity of the person alleged to have imposed this requirement on the applicant is not stated it can be inferred that it was the applicant’s supervisors.

28The respondent has asked that the Tribunal produce a revised Application setting out the matters that are in dispute in this Application. The Tribunal will release a Case Assessment Direction setting out the allegations that are properly before the Tribunal consistent with these reasons.

29I am seized of this Application.