HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Desmond Hassell Applicant
-and-
Parkdale United Church - Ottawa Respondent
A N D B E T W E E N:
Desmond Hassell Applicant
-and-
United Church of Canada Montreal & Ottawa Conference and Ottawa Presbytery of the United Church of Canada Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty Date: May 5, 2010 Citation: 2010 HRTO 991 Indexed as: Hassell v. Parkdale United Church - Ottawa
Appearances
Desmond Hassell, Applicant | John Westdal, Counsel Parkdale United Church, United Church of Canada Montreal & Ottawa Conference, and Ottawa Presbytery of the United Church of Canada, Respondents | Gary Boyd, Counsel
1This Interim Decision relates to two Applications filed by the applicant on February 25, 2009, and February 27, 2009, respectively, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges that the respondents discriminated against him on the basis of sex in respect of employment and contracts.
2In accordance with an earlier Interim Decision, 2009 HRTO 2166, the Tribunal held a hearing to deal with the following preliminary issues:
a. Are the Applications outside of the Tribunal's jurisdiction pursuant to section 34 of the Code because of delay?
b. Does the subject matter of the Applications fall within the scope of the Code? In short, is there a prima facie case of discrimination?
c. Has another proceeding appropriately dealt with the subject matter of the Applications for the purpose of section 45.1 of the Code?
3At the hearing, the Tribunal heard evidence from the applicant. Both the applicant and the respondents provided oral submissions.
OVERVIEW
4The applicant was not represented by counsel at the time he filed the Applications with the Tribunal. In the Applications, he appears to allege that he was discriminated against because he is male and was accused of sexual harassment. Although this is not entirely clear from the Applications, the applicant seemed to suggest that a woman in a similar situation would not have been so accused.
5At the time of the hearing, the applicant had retained counsel. In the applicant's oral evidence and in the submissions of his counsel, there is a reframing of the allegations contained in the Application.
6The applicant is alleging that he was discriminated against on the basis of sex because a woman in a similar situation would have been treated differently. He suggests that allegations of sexual impropriety would not have been raised against a woman in similar circumstances. He also alleges that a woman would have been treated more fairly, that the respondents would not have prematurely concluded she was guilty, and that she would have had an opportunity to respond more meaningfully to the allegations of wrongdoing.
7The issues arise as a result of a written complaint about the applicant, which was filed with Parkdale United Church ("Parkdale") by another employee. The parties agree that the written complaint contains absolutely no allegations of sexual impropriety. The applicant alleges, however, that the respondents alluded to sexual impropriety when they advised him of the complaint. The respondents deny that any such suggestion was made.
8Parkdale was the applicant's employer. It is a "pastoral charge", under the jurisdiction of the other respondents, namely the Ottawa Presbytery ("Presbytery") and the Conference of the United Church of Canada ("Conference"). Put in the simplest terms, although the other respondents have something of an oversight role over Parkdale, Parkdale is a separate entity. I make no finding as to whether Parkdale is a legal entity or whether it has been appropriately identified in the Application.
9For the following reasons, I find that the Application against Parkdale is dismissed pursuant to section 34 of the Code.
10The request for dismissal of the Application against the other respondents (the Presbytery and the Conference) is denied. In my view, the applicant has met the onus of establishing a prima facie case of discrimination against these respondents. Allegations of discrimination were not raised in the complaint process overseen by the Conference. Accordingly, section 45.1 does not apply in the circumstances.
THE FACTS
11The application was employed by Parkdale as choir director and organist for approximately 16 years. At the time of the hearing, the applicant was 84 years old.
12After being advised that a complaint had been made against him by another employee, the applicant decided not to seek the renewal of his employment contract. His employment with Parkdale ended on December 31, 2006.
13The applicant was not provided with a copy of the written complaint at the time it was made. At the hearing, the parties agreed that the complaint contains no allegation of sexual impropriety. However, the applicant's position is that, at the time he was advised of the complaint, Parkdale alluded to some sort of sexual impropriety. The applicant believes this allusion was made to intimidate him and ensure his voluntary departure from Parkdale.
14The respondents deny that any suggestion of sexual impropriety was made to the applicant. They also argue that, in the circumstances, the applicant could not reasonably have inferred that he was being accused of sexually inappropriate conduct.
15In essence, the written complaint against the applicant expressed concerns about interpersonal issues the complainant was having with the applicant. There is no allegation of sexual misconduct.
16On September 13, 2006, members of Parkdale's Official Board Executive met with the applicant to advise him of the complaint and the steps it had decided to take in response. The applicant was told that the Official Board Executive had voted unanimously to terminate his employment. At this meeting, the applicant was presented with a number of options, all of which lead to termination of his employment with Parkdale.
17The options presented to him included his resignation at the expiration of his current contract. He was also given the option of appealing the Official Board Executive's decision to the full Official Board, a body that includes 40 or 50 members (approximately 8% of the Parkdale congregation.)
18At the September 13, 2006 meeting, the applicant was not advised of the identity of the complainant and he was not given a copy of the written complaint. Although the applicant disputes this, the respondents state the applicant was given an opportunity to comment on the Official Board Executive's decision. The respondents state that the applicant was, however, told that such comments would not alter that decision in any way.
19Ultimately, the applicant decided not to seek the renewal of his contract. He did not appeal the Official Board Executive's decision. As a result, his employment relationship with Parkdale ended on December 31, 2006.
20The applicant did not seem to dispute that the Official Board had the power to overturn the decision of the Official Board Executive. However, he testified that he felt an appeal to the Official Board would be pointless in the circumstances. He said that he felt the decision had been made unanimously by the Executive and would not likely be reversed.
21The applicant did, however, take a number of other steps in regards to the termination of the employment relationship. More specifically:
a. In November 2006, counsel retained by the applicant sent a demand letter to the Official Board of Parkdale seeking the withdrawal of the complaint, an apology, and the publication of the retraction in the church newspaper;
b. On September 11, 2008, the applicant filed a statement of claim seeking damages for, among other things, wrongful dismissal. The statement of claim was withdrawn after the Tribunal issued a notice of intent to dismiss the Applications; and
c. Beginning in August 2007, the applicant filed a complaint with the Presbytery.
22In the complaint he filed with the Presbytery, the applicant alleges that Parkdale forced his resignation using threats, including the "criminal charge of harassment". The parties agree that, in his complaint to Presbytery, the applicant does not raise any of the human rights allegations he makes in the Applications. He does not complain that he was treated differently by Parkdale or any of the respondents because of his sex.
23I understand the Presbytery to have forwarded the applicant's complaint to the Executive of the Montreal and Ottawa Conference of the United Church of Canada ("Conference").
24The Conference established a formal hearing committee in accordance with the applicable bylaws of the United Church. The formal hearing committee was tasked with considering the applicant's complaint against Parkdale and determining whether an oral hearing should take place.
25The formal hearing committee established by the Conference considered some 50 documents, a number of which were authored by the applicant and at least two of which were submitted by him to the Conference or the formal hearing committee.
26The applicant testified that he ought to have had an oral hearing. He argues that the failure to provide an oral hearing is part of the discrimination levelled against him. He did, however, testify that he felt he was able to put his side of the story forward in the written materials considered by the formal hearing committee.
27The formal hearing committee ultimately decided that there was no reasonable possibility of the applicant demonstrating that he had been treated unfairly. It concluded that it was not "in the interests of Parkdale United Church, or indeed the United Church, that a Formal Hearing be held."
28On November 28, 2008, the Executive Conference accepted the decision of the formal hearing committee. As a result, the complaint mechanism within the United Church has been exhausted.
29The applicant testified that, as of his September 13, 2006 meeting with members of Parkdale's Official Board Executive, he believed that allegations of a sexual nature had been raised against him. This evidence was challenged in cross-examination. The respondents pointed out that none of the applicant's correspondence, complaints or claims makes clear reference to allegations sexual impropriety or sexual harassment. None of these documents points to any concerns the applicant might have in this regard or any alleged unfair treatment because of gender. Counsel for the respondents suggests that, had the sexual nature of the allegations been a real concern for the applicant, he would have raised this directly at a much earlier stage. Counsel suggests that this issue arose only once the applicant proved unsuccessful in other venues.
30The applicant pointed out that he referred to "criminal harassment" in his December 5, 2007 letter to Presbytery. He felt that sexual harassment was implied in the term "criminal harassment". The applicant further notes that he does make specific reference to a zero tolerance policy for sexual harassment in his June 20, 2008 letter to the Conference.
ANALYSIS
The nature of the allegations
31At this stage, I think it is helpful to summarize the applicant's allegations against each of the respondents:
a. Parkdale was the applicant's employer. The applicant alleges that Parkdale forced his resignation by alleging sexual impropriety, something it would not have done to a female employee. He says Parkdale further discriminated against him by assuming his guilt and by failing to allow him to meaningfully respond to the allegations.
b. The applicant's allegations against the Conference are that it failed to treat him fairly and did not provide him with the same procedural opportunities (an oral hearing) that would have been afforded to a woman. He also argues the Conference's decision was discriminatory and that it would have reached a different decision had he been female.
c. The applicant's specific allegations against the Presbytery are more ambiguous. He seems to be stating that the Presbytery ought to have taken steps to rectify Parkdale's mistreatment of him and that it ought to have ensured that internal procedures were followed.
Delay
32The applicant acknowledged that all of the allegations regarding Parkdale relate to incidents which occurred in September of 2006. He suggests, however, that the respondents should be considered as a whole; Parkdale's actions are part and parcel of the ongoing discrimination allegedly committed by the Conference and the Presbytery.
33I am not satisfied that the applicant has made any allegations that would allow me to reach this conclusion. In particular, he has not alleged that Parkdale influenced or had a role to play in decisions taken or the procedures adopted by the Church or the Presbytery. Based on the allegations included in the Applications and the submissions advanced at the hearing, I find that the last incident of alleged discrimination against Parkdale occurred in September 2006.
34Thus, the Application against Parkdale was filed approximately two and a half years after the last incident of alleged discrimination.
35Section 34 of the Code states:
(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.
36Pursuant to section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:
a. the delay was incurred in good faith; and
b. no substantial prejudice will result to any person affected by the delay.
37The applicant argues that, in the circumstances, the delay was in good faith. He states, although he was aware of a two-year limitation period for civil actions, he did not realise that he must file an application with the Tribunal within one year of the last alleged incident of discrimination. He testified also that he was awaiting the final outcome from the Conference before filing an application. He stated that his hope was that his allegations of discrimination against all of the respondents would be resolved by the Conference's decision. When he was unsuccessful in the choice of venue, he took steps to file applications with the Tribunal.
38In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons directly impeded the applicant's ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.
39In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred "in good faith". It wrote:
To establish that delay in pursuing one's rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3d) 419 (Ont. U.F.C.), cited in Scherer v. Scherer, 2002 CanLII 44920 (ON C.A.), (2002) 59 O.R. (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one's rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that "failure to act in ignorance of one's rights may, in some circumstances, amount to "good faith". However, ... it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights." (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).
40Similarly, waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a valid explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. It was certainly open to the applicant to file a timely Application under the Code while he pursued his rights pursuant to the United Church's by-laws. Indeed, this is the course of action he took with the civil suit.
41The applicant has not satisfied me that the delay in filing the Application against Parkdale meets the definition of "good faith" according to the Tribunal's jurisprudence. Accordingly, the Application against Parkdale is dismissed pursuant to section 34 of the Code.
The Presbytery and the Conference
42The applicant states that the alleged discrimination committed by the Presbytery and the Conference continued until November 28, 2008, when the Conference Executive accepted that a formal hearing was not required.
43The Application regarding these respondents was filed within one year of November 28, 2008, and, in my view, is consistent with the requirements of section 34 of the Code.
Prima facie case
44The applicant bears the onus of establishing a prima facie case of discrimination. To do so, he must show that his allegations relate to grounds prohibited in the Code which, if they are made out, could form the basis of a finding of discrimination.
45The Tribunal does not have a general power to decide whether the respondents treated the applicant fairly or appropriately. The Tribunal's powers relate only to alleged discrimination and violations of the Code. In other words, while the applicant has stated that he feels mistreated by the respondents, for the subject matter of the Application to fall within the Tribunal's jurisdiction, the applicant must also explain that this alleged mistreatment relates to a ground under the Code.
46If an applicant establishes a prima facie case, the onus shifts to the respondent to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination. However, if the applicant cannot establish a prima facie case of discrimination, the application will generally be dismissed and the respondents will not be required to address the allegations.
47It is well-established that the threshold for establishing a prima facie case of discrimination is not high; the Tribunal recognizes that discrimination is often not overt and it does not hold the applicant to an exacting standard of proof at this stage of the proceeding. The applicant's allegations are presumed to be true and the question becomes whether the respondents' behaviour (as alleged by the applicant) could constitute discrimination under the Code.
48Counsel for the respondents urges me to conclude that the applicant's impression that he was being accused of sexual impropriety is not reasonable. On this basis, he urges me to conclude that the applicant's allegations could not lead to a finding of discrimination and that the Application should be dismissed.
49In my view, it is not appropriate for me to reach such a conclusion at this stage of the proceedings without the benefit of all of the evidence. I accept that, for the purposes of determining whether there is a prima facie case of discrimination, I am required to presume that the applicant's allegations are true.
50I find that the applicant's allegations do relate to a ground under the Code. In my view, if his allegations are believed, they could support a finding of discrimination.
51In rendering this Interim Decision, I make no finding as to whether or not the allegations are made out. I have simply concluded that at least some of the allegations relate to grounds listed in the Code and that, as a result, the matter is within the Tribunal's jurisdiction to decide. I have also concluded that the Application involving the Presbytery and the Conference have met the basic legal threshold for a prima facie case.
Another proceeding
52The respondents argue that the complaint process before the Conference constitutes a proceeding for the purposes of section 45.1 of the Code. They argue that the Applications should be dismissed under section 45.1 because the applicant had an opportunity to have his concerns dealt with through the Conference-led process.
53The respondents accept that the allegations of human rights violation contained in the Applications were not before the Conference. The respondents argued that the Applications should, nevertheless, be dismissed because the allegations they contain could have been advanced in Conference process.
54The Tribunal has concluded that section 45.1 does not operate in this fashion. It addresses situations where another proceeding has dealt with the substance of the Application, but is not meant to apply in circumstances where another proceeding could have dealt with it. As the Tribunal indicated in Maurer v. Metroland Media Group, 2009 HRTO 200, the existence of other avenues for advancing the allegations of human rights violations is not, by itself, a basis for the application of section 45.1.
Order
55The respondents' request to dismiss the Application against Parkdale for delay is granted.
56The respondents' request to dismiss the Application against the Presbytery and the Conference is denied.
57The parties have indicated they wished to participate in a mediation following the Tribunal's determination of the preliminary issues. Accordingly, the Registrar will schedule a mediation.
58I am not seized of this matter.
Dated at Toronto, this 5th day of May, 2010.
"Signed by"
_________________________________
Michelle Flaherty Vice-chair