Antoinette Henry v. The Regional Municipality of Waterloo, 2011 HRTO 1927

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antoinette Henry Applicant

-and-

The Regional Municipality of Waterloo Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: October 26, 2011 Citation: 2011 HRTO 1927 Indexed as: Henry v. Waterloo (Regional Municipality)

WRITTEN SUBMISSIONS

Antoinette Henry, Applicant | Beth Symes, Counsel The Regional Municipality of Waterloo, Respondent | Donald Jarvis, Counsel

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on November 12, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondent has discriminated in employment based on race, colour, ancestry and ethnic origin. The applicant claims a pattern of discrimination that has denied her promotions to positions for which she is qualified. She refers to employment competitions going back to 1992

2Both parties are represented by counsel. An attempt at mediation has not resulted in a settlement to date. A Union identified as a possible “affected person” has indicated as of February 15, 2011 that it does not seek to intervene or otherwise participate in these proceedings.

3This Interim Decision addresses three Requests for Order During Proceedings (“Requests”): a Request to dismiss part of the Application (all allegations which predate November 12 2009) as untimely, in the alternative a Request that all of the allegations prior to June 2008 be dismissed for lack of particularity, and a Request that the remaining allegations be dismissed as failing to establish discrimination. The respondent has filed full written submissions and requested an oral hearing in respect of the Request, but in the circumstances the Tribunal declines to schedule an oral hearing

4The Tribunal denies the Requests to dismiss, and grants the Request for particulars. Reasons for these decisions, along with further procedural directions, are set out below.

The Request to Dismiss Untimely or Insufficiently Particularized Allegations

5Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the Application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:

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.

6The respondent takes the position that allegations relating to the period before November 12, 2009 should not be considered a “series of events” and that an extension should not be granted under section 34(2) because the delay was not incurred in good faith and because it would suffer substantial prejudice in responding.

Series of incidents

7Insofar as subsequent paragraphs involve a review of the applicant’s allegations, my consideration of those allegations only looks to the content of the allegations themselves, without deciding whether they are proven.

8For the purpose of this Request, I have reviewed all of the allegations for which the applicant provides precise or approximate dates. They include:

a) an allegation that (presumably in 1991) her Director refused to make her a permanent employee after four months of temporary employment because she was pregnant, while a white woman was made permanent at the same time although she too was pregnant when she was hired;

b) an allegation that from 1992 to 2006 she applied for many positions, both within her Union and within management, and that although she received interviews for some of these positions, she was never successful;

c) an allegation that, although her MBA course work from 2006-2008 was job-related and in furtherance of a career in management, she was reimbursed only $1600 of her education expenses, contrary to the region's Tuition Refund Policy;

d) an allegation that, in 2008 and 2009, she applied for 12 positions at the level of supervisor and above, and was interviewed for only four;

e) an allegation that, in an interview in July 2009, the interview panel exhibited specified rude behaviour and refused to hear anything about her MBA.

f) an allegation that less qualified white candidates were hired in each of the four competitions in which she was interviewed (three interviews in 2009 prior to November 12 and one in 2010);

g) an allegation that the respondent’s Human Resources department lost four of her faxed applications and two of her hand-delivered applications within 12 months during 2008-2009;

h) allegations that the respondents did not take appropriate action in dealing with her internal complaints about discrimination in respect of employment, and attempted to deceive her in providing explanation concerning lost applications. The complaint that prompted an investigation was allegedly made in June of 2009, and further requests for investigation were made after the applicant received information from the investigation during the second half of 2009, resulting in further investigation by the respondent after November 30, 2009.

9The parties in this case have a lengthy shared history; as noted by both, the applicant has been employed with the respondent since 1991. It is clear that the applicant’s allegations of behaviour that might, if all necessary elements are proven and subject to s.34, constitute a breach of the Code date from 1991 when she was first employed to 2010. There are also a number of allegations attributed to dates after November 12 2009, which are clearly within the one-year limit referenced in s.34. The applicant asserts that the respondent conducted four formal investigations into the applicant’s allegations, the last of which was ongoing in 2010.

10The Tribunal’s approach to what is a “series of incidents” is developing on a case-by-case basis. It has been said that events are not part of a series of incidents if there is a significant break in the temporal connection between them. A gap of more than one year between events has been considered in some cases to interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. The Tribunal has also considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See Duggan v. Villa Care Centre Nursing Home, 2010 HRTO; Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has defined the word series as “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457.

11With the exception of item b) in paragraph 8 above, the events are described with considerable detail and specificity. The applicant admits that there is a gap of some 22 months in which no allegations are raised. It is to be noted that Tribunal decisions such as Savage and Chintaman, above, should not be read as imposing a rigid “less than one year” rule. To do so would be to import a restriction into a discretionary provision that is not warranted by the words of s.34. In the circumstances of this case, the 22-month gap is understandable; the parties agree that the applicant was receiving assessment and other assistance from the respondent’s Human Resources department, and she undertook further education leading to an MBA, which she hoped would enhance her qualifications for the promotions in which she was interested. During the time she was completing her MBA, the applicant did not apply for any positions with the respondent. The applicant submits, correctly in my view, that to dismiss the applicant’s pre-July 2008 allegations solely because of a gap in time attributable to enhancing qualifications would discourage applicants who allege discrimination in employment opportunities from enhancing their qualifications and cooperating with their employers to resolve a situation without recourse to filing an Application.

12With the possible exception of the employment applications made “from 1992 to 2006” referenced in item b), which will be dealt with further below, there do not appear to be other significant breaks between alleged incidents.

13Perhaps more importantly, the allegations are based on assertions of fact that could reasonably be viewed as sufficiently similar or related to constitute, if established, a pattern of conduct, rather than on alleged incidents relating to discrete issues without some connection or nexus. The applicant consistently alleges that incidents germane to her failure to progress in employment with the respondent are related to the grounds of discrimination cited. She makes assertions of fact, many of which are not disputed by the respondent, that if proven to be influenced by the cited grounds of discrimination, would show a pattern consistent with that allegation. She asserts that several individuals employed by the respondent were involved in more than one of the referenced job competitions. I see this as similar to the situation set out in DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049, in which the Tribunal accepted that alleged incidents were “a series” for the purposes of s.34(1)(b).

14Because I have found that the applicant has established a series of incidents for the purposes of s.34(1)(b), I do not need to assess “good faith and no substantial prejudice” for the purposes of s. 34(2).

Particulars and prejudice

15I have found the allegations are within the time limit set out in s.34. However, that does not end the matter in respect of the two earliest allegations.

16The first is the allegation that (presumably in 1991) the applicant’s Director refused to make her a permanent employee after four months of temporary employment because she was pregnant, while a white woman was made permanent at the same time although she too was pregnant when she was hired.

17The respondents assert that job competition files from 1991 were destroyed in 1995. They also note that the employee who investigated the applicant’s allegation of racial discrimination at that time is no longer employed with the respondent. For these reasons, they submit that they would be prejudiced in dealing with this allegation. The respondent asserts that the respondent’s Commissioner of Human Resources completed an investigation into this allegation in 1991, and “has all of the information and documents with respect to the allegations.”

18The respondent has not asserted that all records relating to the 1991 complaint have been destroyed, or that the employee who investigated cannot be found. In the circumstances, I will not dismiss the 1991 allegation, but this is without prejudice to the respondent’s right to raise the issue at a hearing on the merits of the Application.

19The second earliest allegation is an allegation that from 1992 to 2006 the applicant applied for many positions, both within her Union and within management, and that although she received interviews for some of these positions, she was never successful (“the 1992-2006 allegations”).

20In making allegations in respect of an Application to the Tribunal, the parties are expected to provide as much detail as possible of the “who, what, when and where” variety. If possible, specific dates should be given. Events should be described. I find the 1992-2006 allegations insufficient, in their present form, to enable the respondent to file a meaningful Response. I order the applicant, no later than November 25, 2011, to disclose in writing to the respondent and file with the Tribunal the descriptions and approximate dates of all job competitions between 1992 and 2006 that are relevant to her allegation.

21The respondent must file any amendment to its Response that arises from this information no later than four weeks after the information is sent by the applicant.

Request that the remaining allegations be dismissed as failing to establish discrimination

22In the circumstances of this case, the applicant has made allegations that, if established, would establish a prima facie case of discrimination, and thus a hearing on the merits is required. Accordingly, this request is denied.

Orders and Next Steps

23The Tribunal orders and directs as follows:

• The Requests to dismiss untimely or insufficiently particularized allegations are dismissed.
• The Request to dismiss allegations on the basis that they disclose no prima facie case of discrimination is dismissed.
• The applicant is ordered to disclose in writing to the respondent and file with the Tribunal, no later than November 25, 2011, the descriptions and approximate dates of all job competitions between 1992 and 2006 that are relevant to her allegation.
• The respondent must file any amendment to its Response that arises from this information no later than four weeks after the information is sent by the applicant.
• The file will be sent to the Registrar, who will establish a date for hearing in the usual course.