HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cheryl McNeil
Applicant
- and-
Teston Pipelines Limited and Domenic Alonzi
Respondents
INTERIM DECISION
Adjudicator: Ian R. Mackenzie
Indexed as: McNeil v. Teston Pipelines Limited
APPEARANCES WRITTEN SUBMISSIONS
Cheryl McNeil, Applicant ) Darren Smith, Counsel
Teston Pipelines Ltd., Respondent ) Richard Charney, Counsel
1Cheryl McNeil filed an Application 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 sex, sexual solicitation or advances, and disability.
2The respondent, Teston Pipelines Limited, filed a Request for Order during Proceeding (RFOP) that a portion of the Application be dismissed because of delay, pursuant to subsection 34(1) of the Code. Some of the allegations in the Application refer to alleged events that occurred in 2006. The applicant states that the events in 2006 are part of a continuing series of events. In the alternative, the applicant states that in the circumstances it is appropriate for the Tribunal to allow the late filing of the allegations relating to the 2006 event.
3The individual respondent, Dominic Alonzi, made no submissions on the RFOP.
4The applicant was initially employed by the respondent from the end of June, 2006 until her resignation in January of 2007. She was re-employed by the respondent in late September, 2009 until August of 2010. On September 27, 2010, the applicant filed this Application, alleging inappropriate sexual advances made by the individual respondent. She has relied on two alleged incidents in her Application. The first alleged incident occurred sometime during July or August of 2006. The respondents concede that the second alleged incident is within the one-year time limit set out in section 34 of the Code.
5The respondent states that it first became aware of the 2006 allegations in July of 2010. The applicant did not contest this statement.
6The respondent submitted that each incident occurred in discrete and separate periods of employment. The respondent submitted that a gap of more than one year between incidents interrupts a series of events (Chintaman v. Toronto District School Board 2009 HRTO 1225). The respondent stated that there is no compelling reason for the delay and the applicant has not established that the delay was incurred in good faith. The respondent submitted that the length of the delay was inherently prejudicial to its interests. In addition, the memories of potential witnesses have faded and the ability of the respondent to defend itself against the allegations has been substantially prejudiced by the delay.
7The applicant submitted that the event in 2006 was part of a series of events. She stated that she attempted to address the incident directly with the individual respondent. She stated that the individual respondent apologized for his conduct and she accepted the apology in good faith. The applicant also stated that, at the time, she was concerned about “repercussion” by the employer. After returning to work for the respondent, the pattern of behaviour continued.
8In the alternative, the applicant submitted that if the portion of the Application relating to the 2006 incident is not within the time limit, the delay should be excused because she accepted the apology from the individual respondent in good faith and she was fearful of a reprisal from her employer. The applicant also submitted that there was no prejudice to the respondents because witnesses were available to testify.
ANALYSIS AND FINDINGS
9The Code states that an Application can be made for alleged infringement of rights under the Code within one year of the last incident in a series of incidents: paragraph 34(1) (b). The applicant has submitted that the alleged incident in 2006 was part of a series of events and is therefore timely. In the alternative, the applicant’s position is that subsection 34(2) of the Code applies in this case. Subsection 34(2) provides for the filing of allegations after the expiry of the one-year time limit if the Tribunal 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.
10I will first address the issue of whether the 2006 event is part of a series of incidents. I will then address the request for relief against the one-year time limit.
11Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents: Savage v. Toronto Transit Commission 2010 HRTO 1360. In this case, there is a break of three and a half years between the incidents. In addition, the two incidents are separated by a break in the employment of the applicant. In the circumstances, the two incidents cannot be regarded as part of a series of incidents.
12The Tribunal can accept allegations that relate to events that occurred outside the time limits in section 34 of the Code, if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondents.
13The applicant explains the delay in raising the allegation by referring to the fact that she accepted an apology in good faith and she was afraid of reprisals by the corporate respondent. It was open to the applicant to file an Application after she resigned from the corporate respondent in January of 2007. There can be no fear of reprisal in the absence of an ongoing employment relationship. The fact that she accepted the apology of the individual respondent is an indication that she regarded the matter as resolved. An alleged second incident three and a half years later does not change the fact that she had regarded the matter as resolved, at the time. The applicant has not demonstrated that the delay was incurred in good faith.
14Accordingly, I find that the circumstances in subsection 34(2) of the Code do not apply. The allegations relating to the incident in 2006 are therefore dismissed.
ORDER
15The Tribunal makes the following orders:
a) The allegations in the Application relating to the alleged incident in 2006 are dismissed.
b) A hearing will be scheduled for the remaining allegations.
16I am not seized.
Dated at Toronto, this 19th day of August, 2011.
”Signed by”
Ian R. Mackenzie
Vice-chair