Faith Howard v. 407 ETR Concession Company, 2011 HRTO 1106

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faith Howard

Applicant

-and-

407 ETR Concession Company

Respondent

-and-

Canadian Autoworkers Union Local 414

Intervenor

INTERIM DECISION

Adjudicator: Ian R. Mackenzie

Date: June 7, 2011

Citation: 2011 HRTO 1106

Indexed as: Howard v. 407 ETR Concession

WRITTEN SUBMISSIONS

Faith Howard, Applicant ) Self-represented

407 ETR Concession Company, ) Michael F. Horvat, Counsel

Respondent )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of race, colour and age. The hearing is scheduled for June 28 to 29, 2011. This Interim Decision addresses the following preliminary issues:

a. a request to remove Anita D’Alessandro as a respondent;

b. the alleged delay in filing the Application; and

c. a request for an adjournment of the hearing by the respondent.

2I issued an Interim Decision on April 27, 2011 (2011 HRTO 823). In that decision, I required the applicant to provide further submissions on the request to remove a respondent and on the issue of timeliness of the Application raised by the respondent.

3The applicant provided her submissions on May 31, 2011. The respondent provided submissions on June 3, 2011.

4In its correspondence of June 3, 2011, the respondent requested an adjournment of the hearing scheduled for June 28 and 29, 2011 because the applicant had not provided a list of documents or witness statements as required by the Tribunal’s Rules of Procedure. The applicant subsequently provided documents on June 7, 2011.

Request to Remove Respondent

5In her correspondence of May 31, 2011, the applicant consented to the removal of Ms. D’Alessandro as a respondent to this Application. Accordingly, she is removed as a respondent.

Delay

6The respondents raised a preliminary objection that most of the events described in the Application occurred outside of the one-year time limit required by the Code.

7Section 34 of the Code provides as follows:

(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.

8The applicant provided submissions on the issue of delay on May 31, 2011. She stated that the last incident of discrimination was the termination of her employment (which occurred within a year of the filing of the Application). She also stated that the other events set out in her Application “may be regarded as part of a series of events”. She stated that the denial of employment opportunities (all of which occurred more than a year prior to the filing of the Application) were also based on race and were therefore part of a series of events. She alleges that these allegations were part of proceedings before the Ontario Labour Relations Board in 2009, so there is no prejudice to the respondent as it was aware of the allegations.

9In its correspondence of June 3, 2011, the respondent submitted that the applicant had not connected the allegations of the denial of promotional opportunities with her termination of employment. The last event of discrimination alleged by the applicant, prior to her termination of employment, occurred over two years prior to the termination of employment. The respondent submitted that it would suffer serious prejudice if these allegations were to be heard. The events alleged in the Application go back as far as 2001. Documents are no longer available and some of the employees with direct knowledge of these events no longer work for the respondent.

10The applicant has not explained how the delay in filing her Application was incurred in good faith. She has provided no explanation for the delay in raising these issues. The delay for some of the events is significant and this would cause significant prejudice to the respondent. In addition, the applicant has not explained how the denials of promotional opportunities are connected to her termination of employment.

11In light of the failure of the applicant to demonstrate that the delay in raising the denials of promotional opportunities was incurred in good faith, the significant prejudice to the respondent and the failure of the applicant to show a connection between these events and her termination of employment, the allegations in the Application about the denial of promotional opportunities will not be considered at the hearing.

12In conclusion, the hearing will be limited to allegations of discrimination in the termination of employment of the applicant.

Adjournment Request

13The respondent requested an adjournment of the hearing on the basis that the applicant has not provided documents and witness statements in advance of the hearing, as required by the Rules of Procedure. On June 7, 2011, the applicant provided documents and a witness statement.

14The adjournment request is denied. The respondent now has the documents and the witness statement, as well as the Application. There is sufficient time in advance of the hearing for the respondent to prepare and there is no prejudice suffered by the respondent in these circumstances.

15The Tribunal makes the following order:

a. The respondent Anita D’Alessandro is removed from the Application;

b. The parts of the Application that relate to events not related to the termination of employment and that occurred prior to April 14, 2009 are struck from the Application; and

c. The request for an adjournment of the hearing is denied.

16I am not seized.