Brad Wilson v. City of Mississauga, 2011 HRTO 1349

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brad Wilson

Applicant

-and-

City of Mississauga

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 19, 2011

Citation: 2011 HRTO 1349

Indexed as: Wilson v. City of Mississauga

APPEARANCES

Brad Wilson, Applicant ) Self-represented

The City of Mississauga, ) Erin Kuzz, Counsel

Respondent )

1These four Applications were filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). Two of the Applications were filed in 2008, and two in 2010. All four relate to the applicant’s employment with the City of Mississauga and all four identify disability as a ground of discrimination. They also, variously, identify record of offences, creed, receipt of public assistance, association with a person identified by a ground under the Code and reprisal as further grounds of discrimination.

2In a Case Assessment Direction (CAD) dated February 18, 2011 the Tribunal noted that the Applications were incomplete, extremely difficult to understand and indeed, largely incomprehensible. The Tribunal determined that the Applications appeared to allege ongoing harassment and that it was best to deal with all four Applications together.

3The CAD directed the applicant to provide a written summary of his allegations in order to more clearly identify the specific incidents he was alleging constituted violations of the Code. The CAD stated that a one day summary hearing would be scheduled to address six specific issues. These were:

i) Whether the Applications are within the Tribunal’s jurisdiction because they were filled within the time limit set out in section 34 of the Code and whether there is a good faith in any delay

ii) Whether the Applications are barred by section 53(8) of the Code because the subject mater is the same or substantially the same as previous complaints to the Ontario Human Rights Commission

iii) Whether, assuming the allegations to be true they allege discrimination within the meaning of the Code

iv) Whether there is a reasonable prospect that the applicant can show a link between alleged events and a prohibited ground of the Code

v) Whether there is a reasonable prospect that the applicant can prove that the alleged events occurred

vi) Whether the allegations are sufficiently clear that there is a reasonable prospect that the applicant could prove that the respondents violated the Code.

The CAD also directed that the four Applications be served on the respondent. The respondent has not, as yet, been required to file any Responses.

4The applicant provided a written summary of his allegations in May 2011 in response to the CAD’s direction.

5A hearing was held on June 21, 2011. At the hearing the applicant was given an opportunity to provide further information about the nature of his employment with the respondent and to identify the allegations he was making in each of his four Applications. The respondent then provided information about its understanding of the applicant’s employment history as well as submissions and case law in relation to the six issues raised in the CAD. The applicant was then provided the opportunity to address the six issues outlined in the CAD and to respond to the respondent’s submissions.

6I note a representative of the applicant’s union, the International Association of Machinists and Aerospace Workers District Lodge 78, attended the hearing by teleconference as an observer. I further note that after the hearing the applicant filed a document with the Tribunal under cover of a letter dated July 1, 2011. This was a report prepared by a physician following an independent medical assessment conducted with the applicant on June 6, 2011. There was no explanation for why this information could not have been provided prior to the hearing. I have not considered this unsolicited material.

BACKGROUND

7The applicant was hired by the respondent as a “service person” in 2001. He began on a part time basis, becoming full time in 2002. His is responsible for cleaning parts of City Hall including the council chamber and for “setting up” meeting rooms and other spaces, as required. The applicant testified that his job responsibilities have essentially not changed.

8The applicant stated that he went off work for medical reasons in June 2007 returning to work, according to the respondent, on January 1, 2009. The applicant stated that these medical reasons were related to his experience in the work place and how he was treated by his supervisor and others. The applicant testified that he has currently been off work for four months, again, he suggests, for medical reasons related to his experiences at work.

9The applicant stated that he has cerebral palsy and that affects the mobility of his left side. The applicant stated that this condition does not affect his ability to meet the physical demands of his job but noted, for example, that he operates a broom with only his right arm. The applicant stated that cerebral palsy is a disability that involves brain damage and that it has affected his mental abilities.

10The applicant was asked to clarify each of his four Applications by explaining the nature of his allegations and by providing further particulars. It appears, based on the information the applicant provided at the hearing and in his written materials (primarily in his Applications and his further written summary of allegations) that the applicant believes that various supervisors and fellow workers have made demeaning comments about his mental and physical abilities, that his work has been unfairly criticized by supervisors in order to force him to quit and that persons in the workplace had sabotaged his work, also in order to force him out of the workplace. The applicant refers to working in a poisoned work environment.

11The Applicant filed a Complaint with the Ontario Human Rights Commission (the “Commission”) on February 2, 2008 naming the City of Mississauga as corporate respondent and his manager, his supervisor and his lead hand as personal respondents. This complaint was provided to me. The complaint alleges discrimination based on disability and identifies a number of comments made and actions taken by the personal respondents that the applicant believed were discriminatory.

12The applicant’s Complaint was settled. The minutes of settlement, which were also provided to me, were signed by the parties in November 2008. The minutes include a clause releasing the respondents from any and all claims, applications, demands, complaints or actions of any kind arising out of the Complaint.

DECISION

13The applications filed in 2008, Applications 2008-00389-I and 2008-00391, are dismissed. They are not within the Tribunal’s jurisdiction as they were filed more than one year after the alleged incidents of discrimination and the applicant has not provided a reasonable explanation for why the delay in filing these Applications was incurred in good faith. These Applications are also barred by section 53(8) of the Code because the subject matter of these Applications is substantially the same as the Complaint filed by the applicant with the Commission.

14The applications filed in 2010, Applications 2010-07430-I and 2010-07588-I, will proceed to be heard on their merits. While it was difficult to clearly understand all of the applicant’s allegations I find that there are some allegations that, if accepted as true, could constitute a violation of the Code. I am of the further view that the applicant may have a reasonable prospect of showing that these allegations are true and would constitute a violation of the Code. The applicant has identified specific incidents of alleged discrimination and has suggested that there are witnesses who could support his allegations of discrimination. While the applicant has difficulty in articulating his allegations and presenting his views in a coherent manner I am of the view that this does not necessarily mean that he has no reasonable prospect to prove his allegations.

ANALYSIS

15At the hearing the applicant acknowledged that he did not fully understand some of the grounds of discrimination that he identified in his Applications. At the hearing the applicant went on to state that he was not relying on allegations of discrimination based on record of offences, creed, receipt of public assistance or association with a person identified by a ground under the Code but that he wished to rely on allegations based on disability and reprisal.

16The applicant identifies disability as a ground of discrimination in all four Applications. I am satisfied that each of these four Applications does, in fact, make allegations that relate to the applicant’s disability and as such this a ground of discrimination that is properly before the Tribunal.

17The Applicant identifies reprisal as a ground of discrimination in both his 2010 Applications. Application 2010-07430-I explicitly refers to the applicant’s two 2008 Applications and alleges that the respondent is punishing the applicant for involving “Human Rights” before. Application 2010-07588-I also alleges reprisal and that the applicant is being punished for involving Human Rights. I am satisfied that reprisal is a ground of discrimination that the Tribunal needs to consider in relation to the 2010 Applications.

18However, I do not find that reprisal is a ground of refusal properly raised in the 2008 Applications. To begin, 2008-00389-I identifies the applicable grounds of discrimination as being disability, receipt of public assistance and record of offences only although the applicant does refer later in this Application to being harassed because of a human rights complaint and to being subject to reprisal, it appears, in relation to a job transfer. Application 2008-0391-I alleges discrimination on the basis of disability, record of offences and reprisal. It refers to the applicant’s Complaint filed with the Commission and that the applicant’s human rights having not been protected.

19The applicant filed his Complaint with the Commission in February 2008. The applicant had, at the time, been off work for medical reasons since June 2007. The applicant filed his 2008 Applications with the Tribunal in August 2008, before he returned to work. He was absent from work from when he filed his Complaint to when he filed his Applications. I am not satisfied, based on the timing of the Complaint and the 2008 Applications and the information before me that the applicant has shown that he was potentially subject to reprisal by the respondent for having pursued his rights under the Code by filing a Complaint. I do not find that reprisal is a properly cited ground of discrimination. I am of the view that the reprisal, like the grounds of receipt of public assistance and record of offences, is not a potential ground of discrimination in the 2008 Applications. Accordingly, I have considered the 2008 Applications below on the basis of the remaining potential ground of discrimination contained therein, namely the allegations of discrimination on the grounds of disability while the applicant was working.

20It is helpful to provide further analysis in the context of the six issues identified in the CAD.

i) Are the Applications within the Tribunal’s jurisdiction because they were filled within the time limit set out in section 34 of the Code or if there was delay, was it incurred in good faith?

21Applications 2008-00389-I and 2008-00391 are dismissed for delay. These Applications were both filed on the same day, August 25, 2008. It is difficult to clearly determine the allegations made in these two Applications let alone understand the distinction between them. However, I am satisfied that the Applications make identifiable references to the applicant being harassed at work. I note that the Applications also refer at length to the applicant not having sufficient income to pay for his housing, apparently because of his reduced income after having left work for medical reasons.

22The information before me is that the applicant left work for medical reasons in June 2007. These two Applications are filed in August 2008 over one year after the applicant was not working and the incidents of alleged discrimination would have taken place. section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. The applicant has not met the requirements for filing his 2008 Applications within one year of the last incident of alleged discrimination. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (Miller), the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously.

23section 34 of the Code also gives the Tribunal discretion to accept late applications in certain circumstances. The Code states in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applications to provide a reasonable explanation for the delay

24The applicant submits that the reason for filing his Applications in August 2008 was because he was unaware of the Code requirement to file an Application within a one year time frame. I do not find this constitutes a reasonable explanation for the delay. The Tribunal has determined that it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. See Lutz v. Toronto (City), 2009 HRTO 1137; Ababio v. Humber River Regional Hospital, 2009 HRTO 286.

25I note here that the applicant did not submit that there were issues related to his disability that prevented him from pursuing his rights under the Code in a more timely fashion. I also did not have information or evidence before me to indicate that the applicant’s cerebral palsy or his medical condition while absent from the workplace was so debilitating that the applicant was prevented from pursuing his legal rights. The Tribunal has consistently ruled that it requires medical evidence if an applicant wishes to argue that his or her disability prevented him or her from meeting the required one year time frame. See, for example, Dionne v. Toronto (City), 2011 HRTO 317 and Reid v. Ontario March of Dimes, 2009 HRTO 2207.

ii) Are the applications are barred by section 53(8) of the Code because the subject-matter is the same or substantially the same as previous complaints to the Ontario Human Rights Commission?

26I further find that the applicant is barred from pursuing Applications 2008-00389-I and 2008-00391-I by section 53(8) of the Code. Section 53(8) states that no application filed under section 34 can 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 filed with the Commission. At the time the applicant filed Applications 2008-00389-I and 2008-00391-I he had an outstanding complaint before the Commission, a complaint that was filed in February 2008 (and settled November 2008).

27The allegations in the applicant’s Complaint are relatively clear. They refer to harassing and threatening comments made by the applicant’s manager, supervisor and lead hand up until June 2007 (and the difficulty the applicant subsequently had in paying for his accommodation after leaving work in June 2007). The Complaint itemizes several alleged examples of this harassing behaviour.

28The applicant filed Applications 2008-00389-I and 2008-00391-I six months after his Complaint to the Commission. It is not clear why the applicant filed these two Applications under the circumstances. However, I find these Applications raise substantially the same allegations as the Complaint. In my view they deal with the same subject-matter as the Complaint, that is the respondent’s alleged discriminatory treatment of the applicant in the workplace. The fact that the applicant settled his Complaint with the respondent (after the filing of the Applications) is immaterial to this finding. As the Tribunal stated in Sadaghyani v. Kingston General Hospital, 2008 HRTO 431, Section 53(8) is not restricted to complaints that have been fully investigated or heard by the Commission (para 13). The determinative issue is whether an application is substantially based on the same subject-matter.

2010 APPLICATIONS

29I have considered the 2010 Applications in the context of the further four issues identified in the CAD namely:

iii) Whether, assuming the allegations to be true they allege discrimination within the meaning of the Code;

iv) Whether there is a reasonable prospect that the applicant can show a link between alleged events and a prohibited ground of the Code;

v) Whether there is a reasonable prospect that the applicant can prove that the alleged events occurred; and

vi) Whether the allegations are sufficiently clear that there is a reasonable prospect that the applicant could prove that the respondents violated the Code.

30The respondent submits that at the hearing and in his written materials the applicant provided a very generalized and essentially confusing account of his experiences with the respondent describing, in very broad terms, complaints of unfair treatment by supervisors, of his work being closely checked by supervisors and comments being made by others in the workplace. The respondent submits that most of the comments referred to by the applicant were actually comments that were made by the applicant’s previous manager and supervisor, persons the applicant had not worked with since June 2007.

31The respondent submits that the 2010 Applications include allegations that the respondent refused to allow the applicant to retire on a supervisor’s salary, that insulting comments were made by fellow workers and that the applicant was frustrated because he wanted a different job. The respondent submits that these allegations, if accepted as true, would not constitute a violation of the Code or alternatively the applicant would not be able to show that there was a link between the alleged actions of the respondent and a violation of the Code. The respondent further submits that if the applicant was unable to provide a clear summary of his allegations during his preliminary hearing (in addition to in his Applications) he does not have a reasonable prospect of doing so at a hearing and for all of these reasons Applications 2010-07430-I and 2010-07588-I should be dismissed.

32The applicant submits that he has been the subject of ongoing harassment by staff of the respondent. He submits that his current acting supervisor, Richard, has made inappropriate derogatory comments that relate to his disability and that there has been an ongoing, concerted effort by staff of the respondent to drive him out of his job.

33I have reviewed the applicant’s copious written materials, including his four Applications, his further written summary of allegations, as well as the information provided at the hearing. This information is confusing. Much of it is overlapping and repetitive in nature and it is difficult to sort out what allegedly happened when and why the applicant is of the view that certain actions may be discriminatory. The applicant refers in one application to events in 1999 with another employer. He is also particularly concerned with being able to pay his accommodation costs and refers to this issue constantly while providing various documents to illustrate the financial pressures he is under. The applicant often refers in his written materials to being bullied while at work and to being unfairly given a challenging work assignment without explaining how these actions might violate the Code. The applicant’s account of events and allegations are indeed difficult to follow and understand.

34That said, I find that there are enough particulars provided by the applicant to satisfy me that he has made certain allegations in respect of the respondent that if proven would constitute a violation of the Code and that there is a reasonable prospect that he could show a link between these alleged actions and a prohibited ground of the Code. Many of these allegations are most clearly expressed in his May 2011 Summary of Allegations document.

35The applicant alleges that on September 1, 2010 his current acting supervisor, Richard, stated that the applicant had a mental problem and that this was witnessed by Debbie, an employee who the applicant suggests could be a potential witness. The applicant alleges that this comment refers to his cerebral palsy. The applicant alleges that in June 2010, Richard referred to him as drunk a comment that was witnessed by Paul, another employee who the applicant suggests could be a potential witness. The applicant alleges that on October 27, 2010 there was an incident in which Richard confronted him and ended up breaking the applicant’s broom, an incident which it appears, Debbie witnessed and according to the applicant, challenged Richard to show he could mop the floor using one arm (as the applicant does).

36The applicant alleges that Richard would unfairly criticize his work and that the applicant’s belief was that this was because Richard wanted to force the applicant to quit his job. The applicant refers to Richard telling him on several occasions in July 2010 that he was doing an inadequate cleaning job and that Richard made him clean areas twice. The applicant alleges Richard took photographs of his work on July 27, 2010 to show, it appears, the applicant’s poor work. The applicant states that Debbie also took pictures of his work on July 25, 2010 after Richard complained that he had done a poor job suggesting, it appears, that Richard’s assessment that his work was poor was in dispute. The applicant alleges that Richard inappropriately called him at home in December 2010 to ask him about his absence from work, a further instance, in the applicant’s view, of harassment. The applicant does specifically state that these actions of Richard’s are related to the fact that he has a disability and that they might also be in reprisal for his previous complaints of discrimination.

37In my view there is enough specificity in these allegations to allow the 2010 Applications to proceed. It is potentially possible that the applicant can show that his supervisor made the alleged comments in June and September 2010 and that the applicant was subject to “close supervision” and that these alleged actions are, in some measure, related to his disability and/or his previous complaints of discrimination. I am of the view that I cannot find that the applicant has no reasonable prospect of proving his case given his account and including the possibility of witnesses to support his contentions. While I accept that the applicant has had difficulty in clearly presenting his allegations and that this may make it difficult for the respondent to respond and for the Tribunal to process and ultimately determine the Applications, I have not been persuaded that Applications 2010-07430-I and 2010-07588-I should be dismissed at this stage. I am, of course, making no finding on the merits of the applicant’s case only that it should not be dismissed at this preliminary stage on the basis that the applicant has no reasonable prospect of proving his case.

38One further note: The applicant referred several times to an incident on February 16, 2011 in which he alleged a union representative made a discriminatory comment. I have not considered this allegation to be part of Applications 2010-07430-I or 2010-07588-I given that it is allegedly made by a union representative and occurs after these Applications were filed and this allegation has not factored into my decision.

39In Summary, Applications 2008-00389-I and 2008-00391-I are dismissed. The Tribunal will continue to process Applications 2010-07430-I and 2010-07588-I. The Respondent is directed to file a Response to the 2010 Applications. In preparing this Response the respondent may also consider the information provided by the applicant at the June 21, 2011 hearing, as well as the applicant’s further written materials including his May 2011 written summary of allegations.

40I am not seized of this matter