Malcolm v. Centre for Addiction and Mental Health, 2011 HRTO 1848

Human Rights Tribunal of Ontario

B E T W E E N:

Veronica Malcolm Applicant

-and-

Centre for Addiction and Mental Health and April Collins Respondents

-and-

Ontario Public Service Employees Union Local 500 Intervenor

DECISION

Adjudicator: Naomi Overend Date: October 14, 2011 Citation: 2011 HRTO 1848 Indexed as: Malcolm v. Centre for Addiction and Mental Health

APPEARANCES

Veronica Malcolm, Applicant ) Ayoob Khan, Representative Centre for Addiction and Mental Health and April Collins, Respondents ) Lara Karbulut, Counsel OPSEU Local 500, Intervenor ) Caroline V. (Nini) Jones, Counsel

1The applicant filed this Application on September 10, 2009, alleging discrimination in employment on the basis of race, colour, place of origin and perceived disability contrary to the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”).

2The Response filed on behalf of the respondents argues that the Application should be dismissed for delay and failing to raise a prima facie case. In the alternative, the respondents submit that that the allegations concerning events in 2007 should be dismissed as they were the subject of a grievance, which was subsequently settled.

3The Tribunal issued an Interim Decision, 2011 HRTO 737, in which I indicated that these issues would be addressed in a Preliminary Hearing. The parties were respectively required to submit further submissions and/or information to the Tribunal in advance of the Preliminary Hearing.

4Specifically, the applicant was directed to submit further written particulars with respect to her allegations of “continuous” discrimination and written particulars of any allegations relating to her race, colour and/or place of origin (the Interim Decision mistakenly referred to ethnic origin instead of place of origin, but this did not appear to create any confusion amongst the parties). The respondent was directed to provide the Memorandum of Agreement (“Agreement”) arising from the settlement of the grievance.

5In addition to the above, I also granted the Ontario Public Service Employees Union Local 500 (“OPSEU”) intervenor status. Counsel for OPSEU participated in the Preliminary Hearing, which took place on October 3, 2011, and was able to supply useful information concerning the grievance and subsequent Agreement.

Section 45.1/Abuse of Process

6In her Application, the applicant, a registered practical nurse with the Centre for Addiction and Mental Health (“CAMH”), alleges that in May 2007 she was “harassed” by the respondents when they demanded that she see a psychologist on the basis of a perceived disability. The applicant further alleges that in late June 2007, CAMH scheduled her to see Dr. Stall, a psychiatrist.

7The respondents assert that the applicant filed a grievance through her union with respect to this conduct, which was settled by way of an Agreement after an arbitrator was appointed. This matter was settled on or about November 21, 2007 and covered the period of time from May to August, 2007. They take the position that the allegations concerning this period should be dismissed under s. 45.1 of the Code, which provides:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

8In her written submissions to the Tribunal (as well as in her earlier Reply), written by her previous representative, the applicant takes the position that the Agreement is irrelevant because the allegations set out in paragraph 3 of her Application “started in the latter part of 2007.” In fact, the May 2007 allegations are discussed in paragraph 3.

9Based on the position taken by the applicant in her Reply and written submissions, both counsel for the respondent and I believed that the applicant was no longer relying on the May and June 2007 incidents (since they clearly occurred before the latter part of 2007). However, when questioned on this, the applicant’s new representative said that his client was very much relying on these incidents as allegations of discrimination.

10The applicant’s representative submits that the grievance concerning these matters did not specifically raise the Code, and on its face did not “appropriately” deal with the substance of the Application. He points to the fact that the applicant’s grievance did not specifically mention a violation of the Code, and the fact that the remedies provided in the Agreement (reimbursement of wages and expenses, and removal of a letter from the applicant’s personnel file) are not consistent with the type of remedies awarded in a human rights context.

11The applicant also relies on two cases of this Tribunal: Bechard v. Ontario Lottery and Gaming Corporation (“Bechard”), 2011 HRTO 1191 and Warling v. Ontario (Community Safety and Correctional Services) (“Warling”), 2010 HRTO 826, in support of his argument that the grievance did not “appropriately” deal with the substance of the allegation. It is not clear to me why these cases support the applicant’s position.

12In Bechard, the Tribunal refused to dismiss the Application on the following basis: “The insurance appeal process employed by the respondent’s disability management service provider was not a “proceeding” within the meaning of s. 45.1 of the Code.” This case provides no assistance to the applicant in that we are dealing with a grievance proceeding before an arbitrator not an internal process. The Tribunal has ruled that grievance proceedings – even those that settle – are proceedings within the meaning of s. 45.1 of the Code. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

13In Warling¸ the second case cited by the applicant, the Tribunal dismissed the Application on the basis of s. 45.1 because the applicant filed the Application after having grieved the subject matter before the Grievance Settlement Board. The applicant’s representative points to the test set out in Warling from an earlier decision of this Tribunal (Campbell v. Toronto District School Board, 2008 HRTO 62). Specifically, he points to Vice-chair Liang’s statement that the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the subject matter.

14Both the respondents and OPSEU state that the grievance concerned whether the employer could require an employee to attend an independent medical evaluation (“IME”) on the basis of a perceived disability under the provision for modified work in the collective agreement. OPSEU states the issue of the applicant’s perceived disability was central to the grievance.

15It is not clear how the proposition that the Tribunal should not be “overly technical” in determining whether the subject matter has been appropriately dealt with helps the applicant. In any event, on the basis of the above, I find that the grievance proceeding appropriately dealt with the subject matter of the IME allegations in the Application.

16Moreover, the Agreement reached between the parties, which was signed by the applicant, contains the following clause: “And whereas the parties are desirous of settling all matters in dispute between them relating to the IME and all of the events and potential claims related to Malcolm’s absence between May and August inclusive” [emphasis added]. The language of the Agreement precludes the applicant from re-litigating any matter with respect to the IME before this Tribunal.

NO PRIMA FACIE CASE

17In her Application, the applicant refers to the fact that she is a “black female of Caribbean decent [sic]” and lists the grounds of discrimination as including race, colour and place of origin. However, other than this assertion that the applicant is a member of a protected group, the Application makes no reference to how the applicant experienced discrimination on these grounds.

18Indeed, the applicant alleges differential treatment and/or harassment on the basis of perceived disability, but not race, colour and place of origin in her allegations in section 8 (What Happened) of her Application. Specifically, in her first and final paragraphs of section 8 she states:

1. … She has reason to believe her rights to equal treatment without discrimination and freedom from discrimination from her employer or acting agent(s) of the employer have been infringed because of perceived disability in contravention of sections 5(1) 5(2) & 9 of the Human Rights Code R.S.O. 1990 as amended.

…

10. The Applicant alleges that she believes the conduct of management at the Centre for Addiction and Mental Health; erroneously targeting and labelling her as suffering from a mental disability (organizing her thoughts, paranoia and aggression towards other employee’s [sic]) constitutes perceived disability which is a violation of the Applicant’s rights under the Human Rights Code.

19In her Form 1A, the applicant is given the opportunity to expand on the reason why she believes she had been harassed or discriminated on the grounds of race, colour and place of origin. Her response to section A13 is simply, “See section 8.”

20The Interim Decision notes that there were no particulars set out in the Application that would link the alleged treatment with the grounds of race, colour and place of origin and directs the applicant to provide written particulars of this. However, the written submissions filed are unresponsive to this direction. Notably, they do address the direction for written particulars on the delay issue (discussed below).

21At the preliminary hearing, I specifically questioned her representative on the applicant’s apparent failure to set out the basis for her belief that the respondents’ treatment of her was founded in racism as well as discrimination on the basis of perceived disability. At their highest his submissions appear to be that the applicant is a member of a protected group and she experienced treatment that was unfair in the workplace.

22However, as many previous decisions have emphasized, the Tribunal does not adjudicate general claims of unfairness. There must be a nexus or link between the allegation of unfairness and a ground under the Code. In the absence of such a link, no violation of the Code can be found. Without a reasonable basis to believe that a link might be shown, an application will not continue in the Tribunal’s process. The failure of the applicant to even make the bald assertion that a nexus exists in her Application lends further support to the fact that the Tribunal has no jurisdiction with respect to these grounds.

DELAY

23The Application contains allegations concerning incidents that took place in May and June 2007 (the IME allegations discussed above) and March and April 2008. (Note: The reference in paragraph 9 of the Application to “April of 2009” is a mistake and should read April 2008). The applicant did not file her Application until September 10, 2009, 16.5 months after the last particularized allegation.

24The respondents point this out in their Response and ask that the Application be dismissed as untimely. Section 34.1 of the Code states:

34 (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.

25As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

26In her Reply (Form 3), the applicant states at paragraph 2 that “she has been the victim of a series of protracted incidents of harassment and discrimination which started in the latter part of 2007 which has been continuous to the present.” Other than stating that the co-worker who she alleges assaulted her in April 2008 was convicted in 2009 (which is not an allegation of discrimination), the Reply makes no further reference to what form this “continuous” harassment and discrimination took.

27As noted above, I directed the applicant to provide written particulars concerning the harassment and discrimination after April 2008 in the Interim Decision. The applicant’s then representative filed written submissions that contained a chronology of “differential treatment and harassment the Applicant alleges was engaged in by the [sic] Sophia Geddes, the nursing manager.”

28It is important to note also that Ms. Geddes was not named as an individual respondent (although April Collins is), nor was she mentioned in any of the particulars set out in the in the original Application. Between May 2008 and July 2009, the applicant alleges that Ms. Geddes reprimanded her for (1) calling in to report an absence due to a family emergency, (2) not attending a Case Conference Ms. Geddes deliberately failed to post, and (3) taking two taxi chits (instead of one) when she became ill at the workplace.

29Of these three allegations preceding the filing of the Application (there is an incident on February 5, 2009, but it concerns the treatment of another staff member and so need not be considered), none are overtly related to any of the grounds under the Code.

30The applicant sets out allegations arising from a disciplinary meeting that took place on September 9, 2010, a year after her Application was filed. There is one final allegation pertaining to a decision by Ms. Geddes to deny her the opportunity to attend an in-service program on April 11, 2011, 19 months after her Application was filed. An applicant cannot make what would otherwise be an untimely Application timely by simply tacking on allegations that occurred after the fact (and, in any event, two to three years after the allegations in the Application).

31Moreover, even though the applicant was told to set out her full particulars, she concludes her May 2011 written submissions, with the following:

The Applicant alleges that these allegations have been ongoing since the latter part of 2007. Some of the incidents over 4 years are too numerous to mention, but what is consistent, whenever she raised these issues of differential treatment and poisoned work environment with April Collins and Sophia Geddes, she is threatened with psychiatric assessment; which confirms her allegations of harassment and discrimination because of perceived mental illness.

32Despite the bald assertion that “whenever she raised these issues of differential treatment and poisoned work environment with April Collins and Sophia Geddes, she is threatened with psychiatric assessment,” there is no reference in the Application, Reply or written submissions concerning a threatened assessment except with respect to the IME allegations in 2007.

33On their face, the new incidents have no apparent connection, either in time or subject matter, with the allegations originally made in her Application. The applicant does not make the connection between the new allegations and her original allegations in either her written or oral submissions, other than to make the bald assertion that they “confirm” her previous allegations of harassment and discrimination because of perceived mental illness.

34I asked the applicant’s representative to explain during the preliminary hearing what these other allegations are that are “too numerous to mention,” but he was unable to answer that question, suggesting instead that the full story would come out when the applicant gave her testimony. This is not consistent with the Tribunal’s process, which requires the details of allegations to be fully set out in the Application and Response.

35The applicant, who has been represented throughout these proceedings, has been put on notice that the Tribunal was considering dismissing her Application on the basis of delay. Despite that warning, she continues to not particularize the full set of allegations on which she is relying.

36When an applicant intends to rely on incidents that are unrelated to her previous allegations and, in particular, that post-date the filing of the Application, the appropriate course of action would be file a Request for Order During Proceedings to amend her Application. This has not been done.

37In reaching my decision on delay, I am declining to exercise my discretion to consider these recent allegations. I do so for the reasons stated above, and also because they are made approximately two years after the incidents are alleged to have occurred (with respect to the allegations that preceded the filing of the Application). As pointed out by counsel, it is unfair to put the respondents to the burden of having to respond to these allegations when they have made it clear since the timely filing of their Response that the issue of delay is critical.

38Accordingly, the Application is out of time. However, the Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

39As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.

40The applicant takes the position that her Application is timely and has declined, in the alternative, to provide an explanation for why she did not pursue her rights earlier. In the absence of an explanation, she has not met her burden to demonstrate that the delay was incurred in good faith.

41Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.

42In summary, I find that the applicant’s allegations concerning the requirement that she attend an independent medical examination in 2007 were appropriately dealt with in the grievance proceeding, and that to proceed with them would also be an abuse of this Tribunal’s process.

43I find further, that the Tribunal has no jurisdiction with respect to the grounds of race, colour and place of origin as the applicant has failed to articulate a link between them and her allegations.

44Finally, I find that the Tribunal lacks jurisdiction with respect to the entire Application because it was not filed within the one-year time limit and the applicant has failed to demonstrate that the delay in filing her Application was incurred in good faith.

45The Application is accordingly dismissed.

Dated at Toronto, this 14th day of October, 2011.

”signed by”______

Naomi Overend Vice-chair