Vincent Puleio v. Moneris Solutions Corporation, 2010 HRTO 2416

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincent Puleio

Applicant

-and-

Moneris Solutions Corporation, Linda Bruce and Patricia Black

Respondents

Interim decisiON

Adjudicator: David Muir

Date: December 3, 2010

Citation: 2010 HRTO 2416

Indexed as: Puleio v. Moneris Solutions Corporation

WRITTEN SUBMISISONS

Vincent Puleio, Applicant ) Grace Permaul, Counsel

Moneris Solutions Corporation, )

Linda Bruce and Patricia Black, ) Kimberly T. Morris, Counsel

Respondents )

1This is an Application filed June 30, 2009 and perfected on October 30, 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 original human rights complaint (the complaint) filed with the Ontario Human Rights Commission (the Commission) is dated April 19, 2006.

2This Interim Decision deals with a Request for Order During Proceedings (Request) filed by the respondents. In a previous Interim Decision, 2010 HRTO 2059, I dealt with several of the issues raised by the Request and directed the parties provide further submissions on a delay issue and in particular whether the allegations set out in the complaint constitute a series of incidents within the meaning of section 34(10 of the Code. The parties have provided their written submissions as directed.

3The applicant alleges in the complaint that his right to be free from discrimination on the basis of age and disability was infringed by the respondents.

4The particulars of this general allegation are as follows:

a. The applicant self-identifies as a 51 year old person with hyper-tension. He alleges that he is under the care of a psychologist and taking medication.

b. The applicant states that he was employed by the corporate respondent as an “Account Co-ordinator” beginning in 2000. The applicant alleges that when he began his employment the work doubled and as a result he began to experience stress and anxiety. At that time he was diagnosed with hypertension. The applicant alleges that the respondent Bush became aware of his condition in November 2004 when he took a sick leave.

c. The applicant alleges that his position was downgraded in 2002 and he applied for the position of Team Leader. The applicant alleged that at that time he was denied the position in favour of a “young woman with no experience.”

d. The applicant alleges that in 2004 the position of Relationship Manager was given to a man in his mid 20’s and that the applicant would have applied for had it been posted. The applicant alleges that the position was not posted.

e. The applicant alleges that in 2005 the position of Relationship Manager was posted and he applied. The applicant alleges that he was not interviewed for the position. The applicant alleges that he inquired about his candidacy but Human Resources did not respond to his request.

f. The applicant alleges that in November 2004 he was verbally attacked by the respondent Bruce for work related issues that were the responsibility of the help desk. The applicant alleges that the verbal altercation caused him to become ill and when he excused himself, “management” asked him if he was quitting.

g. The applicant alleges that when he returned to work from a sick leave in February 2005 he had medical information to justify his absence. Despite this the applicant alleges that was given an unreasonably heavy work load, his work station was assigned to a new employee and he was given a desk with a faulty computer.

h. The applicant alleges that despite medical information to support his illness he was assigned to several new accounts.

i. The applicant alleges that on December 5, 2005 he was called to a meeting to discuss an email he had sent to his supervisors raising the possibility of a problem with the volume of accounts he had been assigned. The applicant alleges that the respondents had not read his email in time and held him responsible for all of the problems that had arisen while he had been away on a vacation.

j. The applicant states that he was off work on a medical leave from December 5, 2005 to February 26, 2006. The applicant alleges that he provided the respondent with a letter from his treating physicians to the effect that his return to work date would be dependent upon the respondent employer accommodating the applicant in an alternative position.

k. The applicant alleges that a meeting was scheduled on February 14, 2006 with the Director of Human Resources. The applicant alleges that the meeting was cancelled by the Director.

l. The applicant alleges on February 24, 2006 he received a letter from the respondent indicating that he was expected to return to his existing position and that if the applicant did not return by March 1st, they would assume that he had voluntarily terminated his employment.

Delay

5The issue the parties were to address in their submissions was whether or not these allegations above could be understood as a series of incidents within the meaning of section 34 of the Code which 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.

6The Tribunal has interpreted these provisions as requiring an applicant to have filed a complaint at the 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-Bernett v. Kerry’s Place Autism Services, 2010 HRTO 1223.

7Finally, 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.

8The applicant now states that the allegations set out in paragraphs (a), (b) and (c) above are provided as background. It is unclear what the practical significance of this position will be at the hearing. If these allegations are being relied in any way the respondents will be called on to respond to them. I find that it is not necessary to the fair, just and expeditious adjudication of this Application that these allegations be entertained as background. I also have considerable doubt that a proper interpretation of section 34 of the Code allows the adjudication of untimely allegations as background. However characterized they are untimely and accordingly I find that these allegations ought to be dismissed.

9The applicant made no submissions with respect to the allegation in paragraph (d) above which on its face discloses nothing which would support a finding that the Code had been violated. It also may be untimely depending on when it is alleged to have occurred. The applicant will clarify whether or not this allegation is being relied upon and if so will particularize it within 20 days of the date of this Interim Decision failing which this allegation will be dismissed.

10Accordingly, the allegations that are properly part of this Application are those set out in paragraphs (d) (subject to compliance with the Direction above) and (l) and relate primarily to an allegedly discriminatory denial of a job promotion and an alleged failure to accommodate a disability which was allegedly made known to the respondent employer in late 2004. In addition there is an allegation of harassment arising from the allegations set out above.

Other Matters

11Despite my determination in 2010 HRTO 2059 that there was no allegation of reprisal in the complaint, the applicant reiterated his position that the respondents were made aware of this allegation and new ground as part of the process while the complaint was being dealt with by the Commission. It is not alleged that the complaint was amended.

12However the applicant alleged that the respondents were served with the applicant’s Response to the respondent’s Answer to the complaint. The respondents state that they was not served with the applicant’s Answer to its Response as alleged by the applicant. The applicant appears to have withdrawn that allegation and now states that it was his understanding that the respondents were made aware of the reprisal allegation by the Commission. Based on this submission there is even less reason to consider that the allegation and ground of reprisal was properly part of the complaint when it was abandoned at the Commission and this Application was filed with the Tribunal. There is no allegation of reprisal as part of this Application.

Case Assessment Directions

13In order to ensure the fair, just and expeditious adjudication of this Application the Tribunal makes the following Directions:

a. The applicant will clarify whether he is relying on the allegations contained in paragraph 3(d) above, and if he is, will provide full particulars of this allegation on or before December 22, 2010.

14I am not seized.