HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marie Anne Pilon
Applicant
-and-
Corporation of the City of Cornwall, Robert Menagh, David Dick and John Flannigan
Respondents
Interim Decision
Adjudicator: David Muir
Indexed as: Pilon v. Cornwall (City)
1This is an Application filed on June 11, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant has alleged in her human rights complaint filed with the Ontario Human Rights Commission (the “Commission”) on January 29, 2007 that her right to be free from discrimination in employment on the basis of sex and disability were breached by the respondents. A hearing was held on January 26, 2010 in Ottawa to hear oral submissions on a number of preliminary issues raised by the respondents seeking the early dismissal of all or part of the complaint underlying this Application. The preliminary issues raised by the respondents are allowed in part at this stage. My reasons for these conclusions follow.
3As indicated the applicant has alleged discrimination on the basis of sex and disability. These two grounds are largely distinct in terms of their factual underpinnings and can be treated separately for purposes of this Interim Decision. It is also important to note at this stage that no oral evidence was tendered in respect of these preliminary issues. A significant number of documents were referred to by the parties and I did question the applicant closely about some elements of her Application. However, the conclusions with respect to any of the salient facts are tentative and only for purposes of this decision. As I indicated to the parties several times during the hearing, for purposes of this decision I have assumed that the facts the parties relied upon were true, unless evidently not so. It is also the case that most, but not all, of the facts necessary for the resolution of the preliminary issues are not in significant dispute.
4The preliminary issues raised by the respondents are:
that all or part of both the sex and disability complaints were made too late for them to be dealt with by the Tribunal;
that the subject matter of both of the areas of complaint have been appropriately dealt with in an other proceeding; and,
that several of the allegations in the complaint even if proven do not establish a prima facie violation of the Code.
Delay
5Section 34 of the Code allows the Tribunal to consider applications alleging infringements of the Code brought within one year after the incident complained of or the last in a series of alleged incidents. It is now settled that this time limit applies to transitional applications such that incidents which allegedly occurred within one year of the filing of the human rights complaint at the Ontario Human Rights Commission will be considered. The section also provides that that Tribunal may exercise its discretion to accept late applications if certain conditions are met. The entire section is reproduced here:
- (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.
6On the face of it, most of the allegations in the complaint are well out of time having occurred in some instances many years prior to the filing of the complaint in January 2007. Under this section the Tribunal may 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 complaint was incurred in good faith and there is no substantial prejudice to the respondents.
7The applicant stated in response to the delay argument that it was her understanding that the Commission would not accept a complaint from a unionized complainant until the grievance process had been exhausted, or as the applicant said it was put, until it was clear that the union was no longer representing you. I accept that the applicant was provided this advice. As noted in a recent Tribunal decision in another matter, the advice that the applicant was given is consistent with the practice of the Commission at the materials times: see Humphries v. General Motors of Canada, 2010 HRTO 177. However, whether or not the applicant was discouraged from filing her complaint by the Commission has no impact on any of my conclusions below.
The Sex Complaint
8This aspect of the complaint is out of time. It was several years before the applicant filed a grievance over the issue and there is no explanation for that lengthy delay in doing so. My reasons for this conclusion follow.
9The allegation in respect of this complaint is essentially that the applicant was treated differently than two male colleagues who were similarly situated. The applicant states that following a job evaluation and the subsequent elimination of her and a female colleague’s incumbent position, they were “red-circled” from 1998 to 2002. In early June 2002, the applicant states that she became aware that two male employees, whose incumbent positions had been eliminated, had their positions “green circled” with the alleged effect that they received regular wage increments unlike the applicant and her female colleague. The applicant is not sure when these two employees were “green circled” but claims that it likely occurred between 2000 and 2002.
10The applicant’s concerns about this issue were discussed extensively with the employer from June 2002 on but were not resolved. It is clear that the applicant and her bargaining agent had a number of concerns about how the applicant’s position had been treated after the job evaluation process was completed in 1998. The applicant filed an Application with the Pay Equity Commission on April 26, 2003 which determined on October 7, 2003 that there that there was no basis for the Commission to intervene. Two grievances were filed in March and May 2004 but they related to the original job evaluation in May 1998 and her allegation that some of her duties had been removed.
11It is clear that the sex discrimination issue as defined above was known to the applicant in June 2002 and by November 2003, she also knew that her issue would not be resolved by the Pay Equity Commission. It is not until May 19, 2006 that a grievance with respect to the issue articulated in the complaint – that is the differential treatment of the applicant in comparison with two male colleagues – was filed. The applicant states that she knew, at least by May 2004 that she was required to file a grievance before she could file a human rights complaint. In this instance, it was a further two years before she filed a grievance alleging differential treatment in her being red-circled in 1998. I am not satisfied that the lengthy delay here – from June 2002 to May 2006 – can be relieved against on the basis of any good faith explanation. This aspect of the Application is dismissed.
Disability
12The allegations as framed in the complaint first arose in May 2002. The applicant states, and this is not disputed, that she is a person with a disability – colitis. Without oversimplifying the issue, one of the consequences of this condition for the applicant is an unpredictable need to use the washroom. At various stages the respondents were made aware that the applicant required essentially unrestricted access to the washroom. The applicant states in her complaint that she believes that there was no response at all to her concerns from the employer until she made a formal complaint in May 2004. The applicant also claims that the respondents were aware that workplace stress exacerbated her symptoms. She also alleges that a series of events subsequent to her formal complaint in 2004 were experienced by her as harassment and reprisal as a consequence of her demand for accommodation. These actions by the respondents had the effect of seriously exacerbating her symptoms to the point where her physician recommended to her that she leave this workplace in September 2005. She did not return to work and her employment was terminated in June 2006.
13The respondents state that the allegations in 2002, 2004, 2005 and 2006 do not constitute a series of incidents. The allegation respecting the incidents in 2002 is essentially that the applicant was being harassed by a colleague over what was perceived to be the applicant’s abuse of break times and her supervisor failed to respond appropriately. This allegation is unrelated to the later allegations of unfair distribution of work according to the respondents. Similarly the allegation regarding the applicant’s use of the washroom said to have occurred in 2004 is unrelated to the 2005 allegations respecting an unfair distribution of work or her subsequent termination in 2006.
14I do not agree with the respondents’ submission on this point. Although the manner in which the applicant has framed the issues in her complaint give aid to the respondents’ arguments, I find that to dismiss these aspects of the Application because of the manner in which an unrepresented party has chosen to frame the issue would be neither fair nor just.
15I note in this regard that the applicant has framed the allegation from May 2004 that her supervisor admonished her to confine her washroom visits to break times in the grievance as harassment. The allegation might be characterized in that way. However, it can equally and perhaps more easily be understood as a claim that the employer was failing to accommodate her stated need for unrestricted access to the washroom by not adequately responding to a fellow employee’s harassment of the applicant over the issue. The material filed also indicates that the applicant’s need for unrestricted access to the washroom was a source of tension in the workplace and this appears to have been true from 2002 on. I find that whatever the merits of the manner in which the applicant has chosen to frame the issues as harassment and reprisal related to her need for an accommodation, there is a second conceptual thread that runs through all of the allegations – an alleged failure on the part of the respondents to accommodate an acknowledged disability to the point of undue hardship.
16The series of incidents began in May 2002 when the applicant states she became aware that an employee was following her to the washroom and engaging in other intrusive behaviours. The applicant perceived this as harassment and made a complaint to her supervisor, the respondent Flannigan, whose alleged response was to tell the applicant to tell the colleague off. The applicant stated that while she did not feel that the supervisory response was adequate, the issue did seem to be resolved if only because the employee in question retired. In any event, the applicant did not file a grievance and does not appear to have contacted the Commission about this issue. The next alleged incident related to this aspect of the complaint occurred two years later.
17The next alleged incident occurred on April 28, 2004 when her supervisor is alleged to have instructed her to not use the washroom at times other than scheduled breaks. The applicant alleges that her supervisor stated that a fellow employee had reported that she was using the washroom at times other than her scheduled breaks. She alleges that her supervisor told her that by her use of the washroom at other than scheduled break times her doing so was sending the wrong message. The applicant alleges that she was given the same instruction on April 30, 2004. The applicant alleges that these incidents caused her stress which exacerbated her colitis symptoms and she went home early that day – a dispute arose about her entitlement to sick pay for that day but was later resolved.
18The applicant states that she saw her family physician on May 4 and was advised to take four weeks off work, which she did. The applicant wrote a letter of complaint to the employer on May 4, 2004 and made a formal written request for accommodation of her disability. She attached a letter from her family physician which advised the respondent employer that the applicant had a medical condition which required that she have essentially unrestricted access to the washroom. The employer’s response was a one line letter dated May 19, 2004 which stated simply that the employer had never denied the applicant access to the washroom
19The applicant contacted the Commission on May 18, 2004. On the same date, the respondent employer advised the applicant that an investigation of her complaint would be conducted. A grievance related to the alleged incidents of April 26 and 30 was filed on May 19, 2004. Although an investigation was conducted and the applicant attended a meeting with the employer as part of it, the applicant alleges that she was never provided with the resulting report.
20The report entitled “Informal Review on Allegations of Harassment in the Finance Department”, dated July 19, 2004 was filed by the respondents. I note at this point that the Report is as much about workload distribution in the applicant’s department as it is about the issues raised by the applicant’s May 4 complaint. It is also clear from the report that there were tensions in the workplace about alleged preferential treatment of employees. At this stage it appears that this was likely a reference, in part, to the applicant’s need for unpredictable washroom breaks which clearly had been an issue for some of the applicant’s colleagues since 2002.
21It is unclear what was done to implement the several recommendations in the report. However, the applicant states that the failure of the employer to provide her a copy of its report left her unsure about the employer’s response to her complaint and her request for formal accommodation and the issue remained unresolved for her. The respondents state that the applicant’s May 19 grievance was withdrawn on a without prejudice basis on October 27, 2004 by her bargaining agent. The documentary evidence is less than clear that it was in fact, be that as it may there is no indication of the circumstances surrounding the withdrawal or that that the applicant consented to it.
22The applicant alleges that from April to September 2005, increased workload and disputes with colleagues and supervision about her workload exacerbated her colitis symptoms. The applicant alleges that she raised her workload issues with her supervisors on several occasions but they did nothing to assist her. She asserts that the employer, in particular her immediate supervisors, were well aware of the impact of workplace stress on her symptoms and that her attempts to resolve the workload issues must be understood in this context. It is not disputed at this stage that the applicant did not expressly ask for further accommodation of her disability in the context of these workplace disputes. From the respondents’ side, the issues at the time appear to have been treated as essentially a performance management problem.
23The workload issues went unresolved. The applicant characterized these issues as harassment. As a consequence of these ongoing issues, the applicant’s colitis symptoms worsened and she left work on or about September 15, 2005 and did not return. The applicant filed a claim with the respondent employer for short term sickness benefits which was denied. The applicant relies upon this denial as part of her harassment and/or reprisal claim. Her physician reported to the respondent employer on the application for short term sickness benefits on or about September 20, 2005 that the applicant was experiencing “exacerbation of colitis, insomnia, (illegible), emotional distress due to psychologically unhealthy work environment and harassment”. The respondent employer was also advised at that time that the applicant’s absence from work might be affected by “long standing issues that have never been addressed/resolved at work, not able to function in current work assignment”. The physician further advised the employer that the applicant had experienced a similar job related stress reaction in May 2004.
24Grievances were filed with respect to these disputes from April to September 2005, as well as the failure to pay short term sickness benefits in September 2005. There are two grievances in the respondents’ materials dated September 16 and 20 respectively. These grievances were later withdrawn by the union in May 2007. There is no indication that the applicant consented to these withdrawals.
25The applicant applied for employment insurance sick benefits. The employer challenged her application for benefits. The Board of Referees held a hearing in January 2006 and concluded that the applicant had just cause for not being at work largely based on her physician’s statements to the effect that the behaviour of the respondents had made her ill and that she recommended that she leave the workplace. The Board of Referees explicitly rejected the respondent employer’s position that the applicant had left work because she was upset with its attempt to performance manage her.
26The applicant alleges that the challenge to her employment insurance application was harassment by the respondents. The respondents state that the exercise of a statutory right cannot be harassment or discrimination. As I stated at the hearing, in some circumstances it might be. To my mind, whether or not this incident in the total context of the unravelling of this employment relationship, is an incident of harassment or discrimination cannot be determined on the material before me and more to the point it is not, at this stage, plain and obvious that it was not. Accordingly, it remains an incident to be considered in the context of the delay issue.
27The applicant also states that on January 13, 2006, she was summonsed to give evidence at a trial of a person accused of tax fraud. This attendance arose out of the course of the applicant’s employment. The applicant believes that the respondents were in a position to determine that she should be the person summonsed, rather than a work colleague and believes that this was harassment by respondents. The respondents state that the claim is preposterous. It may be, however that determination is for another day. At this stage, this incident remains an incident to be considered in the context of the delay issue.
28On June 28, 2006, the employer ordered the applicant to return to work on July 4, 2006. The applicant advised the employer that she could not return to work and referred the respondent employer to her physician’s note of November 2005 which the Board of Referees had relied upon in coming to their conclusions. The employer terminated the applicant on July 4, 2006. A grievance was filed by the applicant alleging harassment before and during a sick leave contrary to the Code on July 5 and on July 10 in response to the termination. These grievances along and all of the other outstanding grievances of the applicant were withdrawn by the union in May 2007. At about the same time the union formally advised the applicant advising her of same and informing her that it no longer represented her.
29As indicated earlier, the complaint was filed with the Commission in January 2007 and as such all of the allegations related to incidents occurring earlier than January 2006 are out of time unless they are a series of incidents or that there is a good faith explanation for the delay and there is no prejudice to the respondents in being asked to respond to them at this stage.
30I find that the 2002 allegations are out of time. It seems to me that the logic of the time limits in the Code requires that there not be significant gaps between incidents in a series of incidents. Assuming without deciding that a gap of as long as a year is acceptable, I find that a gap that exceeds 12 months between incidents in a series interrupts it and, absent a good faith explanation for the gap, events prior to the interruption cannot be dealt with by the Tribunal. Although the applicant states that the harassment issue was not resolved in her mind, it appears that she took no further steps to force the issue with her employer. She did not file a grievance or make a formal complaint. There being a two year gap between this incident and the next one in the series and no explanation at all for the delay in making a complaint, I find that this aspect of the Application must be dismissed as well.
31I find that all of the incidents from May 2004 through 2005 can be seen as a series of incidents culminating in a termination of the applicant’s employment in July 2006. As such, there is no delay issue with respect to these incidents as there is no gap between the alleged incidents any greater than 12 months. It is possible that when all of the evidence is in, some of these conclusions should be revisited, in particular whether or not the events from April to September 15 can properly be seen as incidents in the series. However, at this stage and based on the record as it is, I am satisfied that the incidents complained of from May 2004 to July 4, 2006 are a series of incidents as contemplated by section 34(1) of the Code.
32The respondents also stated that in respect of the many allegations made in the complaint, the respondents would suffer great prejudice if these claims were allowed to proceed. The respondents state that many of the key individuals involved in these incidents are no longer employed by the City and given the length of time, memories will certainly be vague and documents may have been gone missing. I agree that the there might well be significant prejudice to the respondents if they were required to respond to all of the allegations made some of which dated back to 1998. However, the allegations which remain begin in May 2004 and many of them are said to have occurred between April 2005 and July 2006. The only specific issue the respondents raised was the fact that one of the individual respondents, David Dick, is no longer employed by the City. I am not prepared to infer significant or any prejudice at all based on that fact alone.
Has the subject matter of the Application been appropriately dealt with?
33As all that remains of the Application are those allegations beginning in 2004 related to the claim of discrimination, harassment and reprisal in respect of a disability, I have considered the respondents’ argument only as it relates to these issues.
34The respondents state that the remaining issues raised by the complaint have been appropriately dealt with. The respondents state that each of them has been the subject of a grievance filed on behalf of the applicant by her union and each has been resolved, most often by their being withdrawn by the union. The respondents state that it is a fundamental principle of labour law that a withdrawal is binding on the union, and by extension the respondents state should be binding on the applicant. In this regard, the respondents relied upon selections in Brown and Beatty, Canadian Labour Arbitration, 3rd Edition, Canada Law Book, the acknowledged premier text on labour law in this country.
35I accept the respondents’ assertion that finality in litigation, including finality occasioned by the withdrawal of a grievance, is a key value in labour relations or any litigation process. However, there is another factor that must be considered flowing from the union’s status as exclusive bargaining agent and its carriage of grievances filed by or on behalf of its members. At the end of the day, the union can dispose of a grievance in any manner it chooses subject only to its obligation under section 74 of the Labour Relations Act, S.O. 1995. Does the union’s withdrawal or settlement of a grievance bind the applicant in respect of this proceeding where there is no evidence that she consented?
36As I pointed out to the respondents at the hearing, all of the authorities relied upon by them were situations where the applicant was the author of their destiny. Typically they have signed off on the settlement or withdrawal in exchange for some consideration. That is not what has occurred here. With respect to the grievances related to the remaining allegations, they appear to have been withdrawn without the knowledge or consent of the applicant and after the union had indicated to her that it no longer represented her. The union is not a party to this proceeding and there is very little in the record that would explain the union’s actions. Nonetheless it is crystal clear that the applicant did not consent to the resolution of the grievances relied upon by the respondents.
37To my mind the issue here boils down to this – can an application be said to be appropriately dealt with when the substance of the application has been dealt with by a withdrawal of a grievance without the consent of the applicant? I think not and the authorities relied upon by the respondents do not stand for such a proposition. I note for example in Dunn v. Sault Ste.Marie (City), 2008 HRTO 149 that the applicant signed off on the settlement. Similarly, in Passmore v. P & H Foods, 2009 HRTO 1378, the applicant signed off on the withdrawal of one grievance and the Minutes settling two others said to have dealt with the substance of the Application.
38In the absence of evidence that the applicant turned her mind to it and agreed to the withdrawal of a grievance, I find that there is no basis to apply section 45.1. In the circumstances here, there is no evidence that the applicant agreed or was even aware of the withdrawal of the relevant grievances at the material times.
No Prima Facie Case
39The respondents’ argument that the remaining allegations disclose no prima facie case of discrimination is deferred pending the hearing of evidence. It may be after hearing the applicant’s evidence that the respondents will wish to raise the issue again. However, at this stage based on what the record to date reveals, the Application discloses a prima facie case.
Other Matters
40At the outset of the hearing I raised an issue with the parties to which there was no response at the time. As noted above, the applicant applied for employment insurance benefits after leaving the workplace. The employer challenged her entitlement to those benefits and a hearing was held in which the employer participated. The question I raised with the parties is whether or not the respondents should be bound by the findings of fact made in that determination. It would be useful to have this issue resolved prior to the hearing resuming as it might affect the evidence necessary to resolve the outstanding issues. As the findings in the employment insurance proceeding go against the employer, it is logical that the employer go first. Accordingly, I invite the parties’ submissions on the point on the following schedule:
a. The respondents will provide their submissions within 20 days of the date of this Interim Decision;
b. The applicant will respond with her submissions within 20 days of receiving the respondents’ submissions; and,
c. The respondents will deliver and file their reply submissions within ten days of receiving the applicant’s submissions.
41The parties will provide their available dates in September 2010 for a two day hearing on the remainder of this Application.
42I am seized of this matter
Dated at Toronto, this 31st day of March, 2010.
“Signed by”
David Muir
Vice-chair```