HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carrie Robinson
Applicant
-and-
United Steelworkers and Tony DePaulo Stevens
Respondents
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Robinson v. United Steelworkers
WRITTEN SUBMISSIONS
Carrie Robinson, Applicant ) Raj Anand, Counsel
United Steelworkers, Respondent ) Brian Shell, Counsel
Tony DePaulo, Respondent ) Beth Symes, Counsel
1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on September 15, 2009. The Application alleges that the personal respondent discriminated against her on the basis of sex, and engaged in sexual solicitation and reprisal against her. She alleges that the union respondent failed to properly investigate her complaints about the personal respondent, and treated her in a differential manner.
2All parties are represented by counsel. An attempt at mediation has been unsuccessful to date, and a number of Requests for Order During Proceedings (“Requests”) have been filed. Following mediation, the parties agreed to a series of procedural directions.
3This Interim Decision addresses three Requests: a Request to dismiss part of the Application as untimely, a Request to amend the Application, and a Request for production of medical records.
4The Tribunal denies the Request to dismiss, and grants the Request to amend. The Request for production of medical records is dismissed as premature. Reasons for these decisions, and a Case Management Direction, are set out below.
The Request to Dismiss Untimely Allegations
5Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the Application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:
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.
6Both respondents deny any discrimination, harassment or reprisal. They request that the Tribunal exclude from consideration any alleged incidents related to a period prior to September 15, 2008. Both respondents take the position that these allegations should not be considered a “series of events” and that an extension should not be granted under section 34(2) because the delay was not incurred in good faith and because they would suffer substantial prejudice in responding.
7The union respondent relies upon the statement of the law as set out in the personal respondent’s Request.
8The personal respondent states that he is prejudiced by the untimeliness of the Application, “and particularly by serious allegations of two incidents of sexual harassment, allegedly occurring four and five years ago”. He states that these more serious allegations are couched among “workplace management complaints”, some of which are timely, but that the timely allegations “would not make out human rights violations if proved”.
9The Tribunal’s approach to what is a “series of incidents” is developing on a case-by-case basis. It has been said that events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than one year between events has been considered in some cases to interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. The Tribunal has also considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Baisa v. Skills for Change, 2010 HRTO 1621.
10The personal respondent correctly notes that the fact that an application that alleges multiple events does not automatically render those events “a series of events” for the purpose of s. 34(1). The personal respondent asserts that “if a recent allegation does not make out a human rights violation, the limitation period will start from the most recent allegation that would constitute a human rights violation”, citing Villa v. St. Marc Spa, 2009 HRTO 1406; Chintaman, supra; Doyle v. Canarm, 2009 HRTO 674.
11Insofar as subsequent paragraphs involve a review of the applicant’s allegations, it is important to emphasize, as a preliminary matter, that I am not making any findings about whether the applicant’s allegations could sustain a finding that the Code was breached. For the purpose of the issue of delay, my consideration of the applicant’s allegations only looks to the content of the allegations themselves, without deciding whether they are proven.
12The applicant’s position is that there have been a series of incidents initiated by the personal respondent that have comprised harassment and discrimination because of sex, and reprisal. She states that these have continued until after the date of her Application, and that therefore the one year time limit is not engaged.
13In her Application, the applicant sets out a list of allegations in 106 numbered paragraphs. The narrative addresses alleged incidents since just before she was hired as the first female International Staff Representative (“ISR”) in the Hamilton office of the corporate respondent, in mid February 2004. In paragraph 15, she summarizes her allegations: she states that the personal respondent “chose to diminish me; minimize me; sexually harass me; sexually assault me; proposition me and subject me to differential treatment repeatedly over the five and a half years I worked under him”. In most of the allegations, the applicant provides an exact or an approximate date. However, the allegations are not always arranged in strict chronological order; the applicant organizes them under headings such as “various incidents of differential treatment and sexual harassment”, “propositioning by DePaulo” and “insults and derogatory e-mails”.
14For the purpose of this Request, I have reviewed all of the allegations for which the applicant provides precise or approximate dates. They include:
- an allegation that the personal respondent actively resisted the idea of hiring a woman ISR in the Hamilton office (presumably prior to mid-February 2004, when the applicant was hired into the Hamilton job);
- an alleged sexual proposition in 2004 and an alleged sexual assault in 2005;
- alleged exclusion from the office notice board and failure to provide a name plate (2004 to 2009);
- descriptions of behaviour alleged to have occurred and to have been intended to “diminish” the applicant within the workplace, actions alleged to be attempts to undermine the applicant’s work and alleged disparagement of the applicant to others (2004 through 2009); and
- alleged disrespectful and “improper” communication in spring of 2005 through winter of 2006.
15It is clear that the applicant’s allegations of behaviour that might, if all necessary elements are proven and subject to s.34, constitute a breach of the Code date from February of 2004, approximately four years and seven months prior to September 15, 2008, and five years and seven months prior to the date of the Application. In respect of each year from 2004 to mid September 2008, the applicant includes details of several allegations of behaviour that might, if all necessary elements are proven and subject to s.34, constitute a breach of the Code. There does not appear to be a break of more than a year between alleged incidents. There are also a number of such allegations attributed to dates after mid-September 2008, and therefore clearly within the one-year limit referenced in s.34.
16The parties in this case have a lengthy shared history; as noted by the applicant, the respondents set out a context to support their position by citing events that go back to 1988, with a particular focus on events in 2003 and 2004.
17The personal respondent asserts that the applicant cannot claim that her earlier-dated allegations fall within the time limits “due to the continuing effects of an earlier alleged incident”. He cites the Superior Court’s decision in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON S.C.D.C.), and the Tribunal’s decision in Doyle, supra. Unlike the situation in Visic, the applicant does allege continuing actions on the part of the respondents which if proven could be found to breach the Code. Unlike the situation in Doyle, it appears to me that the applicant is not suggesting that her allegations of belittling and undermining stem from the alleged incidents of sexual harassment. Rather, she suggests that the personal respondent did not want a woman in the job, and the alleged sexual harassment was not the first in a series of actions and omissions by which she was made to feel unwelcome.
18Unlike the situation in Dioba v. Toronto Public Library, 2009 HRTO 1503, there is a connection between the individuals involved in all of the allegations that predate September 15, 2008 in this case; the applicant cites only alleged actions and omissions by the personal respondent. Further, the alleged events, if proven, suggest a pattern of conduct reflective of the allegation of ongoing discrimination on the ground of sex.
19For these reasons, I find that the applicant has established a “series of events” within the meaning of s. 34(1)(b) is timely and therefore refuse the Request to dismiss for delay.
The Request to Amend
20On November 2, 2010, the applicant filed a Request to amend the Application.
21Neither respondent has taken a position on whether the applicant’s Request should be allowed. Both have asked for a specified time to respond should the Tribunal allow the amendment.
22The Request to amend to add paragraphs 17 to 72 of the applicant’s Application is granted. I address the case management issues arising from this decision below.
Request for Production of Medical Records
23On November 24, 2010, the personal respondent filed a Request for production of “the medical records of the Applicant”. The wording of the Request is somewhat unclear. The personal respondent did not qualify the description of the medical records requested, but the wording of the Request suggests that the personal respondent may be requesting only those records that are relevant to the applicant’s claim of damages against the personal respondent.
24The union respondent takes no position with respect to the Request.
25The applicant submits that the Request is premature and should be dismissed, citing the Tribunal’s decision in Carasco v. University of Windsor, 2010 HRTO 2090. In that case, the Tribunal found a Request for disclosure premature, noting at para. 14 that parties’
obligations to disclose and produce all arguably relevant documents do not arise until an application is scheduled for hearing, which in this case will not occur until and unless mediation is unsuccessful. At that point, if the [parties]… have a dispute about whether [a party]… has met these obligations, including whether documents have been improperly or unnecessarily redacted and the appropriate application of the Wigmore criteria, the Tribunal can determine the issue then.
26The disclosure of documentary evidence is dealt with in the Tribunal’s Rules. The test is arguable relevance. In other proceedings, the Tribunal has ordered that medical records be disclosed. Privilege with respect to medical records is decided on a case by case basis, balancing the general duty to produce all relevant documents and the invasion of the applicant’s privacy. See MacDonald v. Downtown Health Club for Women, 2009 HRTO 1043; Gardiner v. 1708840 Ontario, 2010 HRTO 498; and Iley v. Sault Community Information and Career Centre, 2010 HRTO 1421
27There has not yet been a date set for hearing this matter. I agree that the Request is premature at this point. All parties are represented by counsel, who may well, now that the issues have been clarified, be able to agree as to disclosure responsibilities.
Case Management Direction
28The respondents must file any amendments to their Responses that arise from this Interim Decision within thirty days of this Interim Decision. When the Responses have been received, or in any event within thirty days of this Interim Decision, the file will be sent to the Registrar, who will establish a date for hearing in the usual course.
Dated at Toronto, this 16th day of December, 2010.
”signed by”_________
Judith Keene
Vice-chair