HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Glavassevich

Applicant

-and-

Sunnybrook Health Sciences Centre and Susan VanDeVelde-Coke

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 18, 2010

Citation: 2010 HRTO 348

Indexed as: Glavassevich v. Sunnybrook Health Sciences Centre

1This is an Application filed under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the respondents’ Request for Order during Proceedings dismissing the Application as having been filed after June 30, 2009. In the alternative the respondents asked the Tribunal to narrow the scope of the Application to exclude allegations made one year before the original complaint was filed and after the complaint was filed. Finally, the respondents also requested that the personal respondent be removed from these proceedings.

Was the transitional application made before June 30, 2009

The Legislation

2As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Ontario Human Rights Commission (the “Commission”) decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal. The Legislature made provision for complainants who had filed complaints with the Commission prior to June 30, 2008 to file transitional Applications with the Tribunal during the period June 30, 2008 to June 30, 2009.

3The transition provisions are set out in section 53:

53(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an application made under subsections (3) and (5) ….

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

4From June 30, 2008 until December 31, 2008, applicants could file section 53(3) applications and from January 1, 2009 to June 30, 2009, applicants could file section 53(5) applications with respect to “continued” complaints. The statutory deadline for making a transitional application is June 30, 2009.

The Tribunal’s Rules

5The Tribunal’s Rules of Procedure for Transitional Applications set out the steps required to file a transitional application:

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.

The Chronology

6On June 24, 2009, the Tribunal received a section 53(5) application (TR-1) and a statement of delivery indicating that the TR-1 and original complaint had been delivered to the respondents’ counsel The TR-1 form was not signed

7The applicant delivered a signed TR-1 to the Tribunal on August 7, 2009.

Analysis

8Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

9I agree with the respondents that June 30, 2009 is a statutory deadline and I have no discretion to waive or extend that deadline. However, I do have to determine when an application is “made” to the Tribunal and in doing so I have the discretion to waive the Tribunal Rules.

10In my view, an application is made to the Tribunal if an applicant has filed sufficient material with the Tribunal by June 30, 2009 to indicate their intention to make an application. In this case, the applicant clearly indicated her intention to file a transitional application by delivering her material to the respondents and the Tribunal prior to June 30, 2009. The only missing information was the applicant’s signature on the TR-1

11My discretion to waive the Tribunal Rules is set out in Rule 4.3:

4.3 To ensure the fair, just and highly expeditious resolution of an Application under section 53(3) or section 53(5) of the Code the Tribunal may:

a) vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms;

12In the circumstances of this case, I have exercised my discretion to relieve against the technical requirements of Rule 12 regarding the filing of an application and deem the Application to have been made on June 24, 2009 despite not being signed.

Scope of the Application

Pre-April 2006 Allegations

13The applicant filed a complaint with Ontario Human Rights Commission (the “Commission”) on April 5, 2007. She self-identifies as a woman of colour. She was hired as a staff nurse in 1968 and rose to the position of Patient Care Manager. She has been attempting to obtain a position at the level of Director since 1991. The applicant alleged ongoing discrimination relating to vacancies for Directors’ positions that were available in 1991, 1993, 1994, 2000 and 2006. She was not successful in obtaining a Director position in any of these circumstances. Either the Director’s position was eliminated and duties redistributed elsewhere (1991) or was unsuccessful in the competition (1993, 1994) or the positions were filled without a competition (2000). The applicant next applied for a Director position in July of 2006 and was not granted an interview. She alleges that the position for which she applied was reorganized into two positions whether deliberately or inadvertently disadvantaged her. She also alleged that she was excluded from a planned reorganization in August 2006.

14The respondents seek to exclude all the allegations prior to the July 2006 competition.

15Section 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.

16Under section 34, an applicant is prevented from filing an Application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist.

17The applicant asserts that the Tribunal ought not to interpret section 34(1)(b) so narrowly as to effectively exclude applicants from using a historical pattern of events to establish systemic discrimination. In my view, in this case the applicant is not raising allegations of “systemic” discrimination in the sense that a combination of direct and adverse effect barrier implicit in the respondents’ hiring system have systematically exclude the group to which the applicant is a part, older women of colour.

18Rather, this Application raises the allegation that the application has been repeatedly discriminated against in each of the competitions referred to in her application from 1991 to 2006.

19The circumstances of the July 2006 competition and the fall reorganization were made in a timely fashion and from part of the subject matter of this Application.

20The first question is whether the 1991 to 2006 vacancies form part of a series of incidents. I am not satisfied that the various times the Director positions were filled since 1991 is a “series of incidents.” Rather, they were separate incidents and the applicant could have brought complaints of discrimination following any or all of them.

21Accordingly, I conclude that the pre-April 2006 incidents are more than one year old. The applicant has asserted that the delay in raising the earlier events was incurred in good faith because she was not aware at the time that her being passed over was the result of discriminatory practices. She only reached that awareness in 2006.

22I am not satisfied that the applicant has met the fairly high onus of demonstrating good faith in the delay. The applicant was aware of all the same factual circumstances that she now alleges point to discrimination. Her current conviction that these facts, known to her at the time, may point to discrimination is not a satisfactory explanation for the delay.

23In the alternative, I am satisfied that the respondents have established substantial prejudice if they are called upon to respond to the 1991 to 2000 Director vacancies, by the combination of the retirement of relevant witnesses, the fading of memories and the destruction of documentation.

24The scope of the Application is restricted to allegations from April 2006 to the April 2007.

Post-Complaint Allegations

25When the applicant filed her transitional application in June 2009, she asserted that the discriminatory conduct was continuing. She raised the issue of her 2007 performance review and the respondents’ mysterious retraction of an employee satisfaction survey.

26The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. I do not accept that the post-complaint allegations form part of the subject matter of the Application.

No Prima Facie Case with Respect to Age

27It is only in very rare cases, in which the facts and issues are very simple and clear that the Tribunal may dismiss on the ground that an application fails to disclose a breach of the Code, without giving an opportunity to make oral submissions. In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal reiterated that, while the onus is on the applicant to establish a prima facie case of discrimination, the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to the applicant, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. The Tribunal set out the approach it uses where the matter is at such a preliminary stage that no evidence has been presented:

In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, at paras. 21-22). (above, at para 6)

28In my view it is not plain and obvious that at this stage that the allegation of age discrimination cannot succeed.

Removal of Personal Respondent

29The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras 4-5:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

30The applicant opposes the removal of the named personal respondent because the nature of the allegation, that Ms. VanDeVelde-Coke deliberating excluded the applicant from a planned reorganization could attract a finding that the personal respondent breached her rights under the Code. In these circumstances, the removal of the personal respondent is not appropriate

Extension of Time

31The respondents also requested an extension of time to file their statement of additional facts and response to remedy and to make disclosure until after the Tribunal clarified the scope of the Application. The deadline for the submission of this material is February 12, 2010 and the hearing is scheduled for May 11, 2010. In the circumstances, I find that it would fair just and expeditious to extend the February 12, 2010 deadline to two weeks after the date of this Interim Decision.