HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Shaw
Applicant
-and-
Greenwood College School
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Shaw v. Greenwood College School
1The applicant filed an Application on August 12, 2011 alleging reprisal in employment contrary to Human Rights Code. She attaches a chronology of events and/or allegations to her Application, which shows that the last event about which the applicant is claiming is the acceptance of her resignation on May 31, 2010.
2The Tribunal sent the applicant a Notice of Intent to Dismiss for delay and no reprisal on September 1, 2011. The applicant responded to that Notice with written submissions received by the Tribunal on September 6, 2011.
JURISDICTION
3The only ground the applicant cites in her Application is reprisal. The protection against reprisal is set out in section 8 of the Code:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.
4To successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:
claiming or enforcing a right under the Code;
instituting or participating in proceedings under the Code; or
refusing to infringe the right of another person.
5The applicant does not indicate that she was reprised against for doing any of the above. Rather, she states she was subject to “a deliberate ongoing pattern of threats, degradation and harassment” and then blocked from returning to work when she was on sick leave. Clearly, the ground of reprisal is not applicable. The question is whether she has made allegations that fall under another ground or grounds.
6The harassment described by the applicant, which she alleges led to her sick leave, was in the nature of generalized bullying, seemingly unrelated to any ground under the Code. The Tribunal does not adjudicate general claims of unfairness or abusive conduct. There must be a nexus between the allegation of unfairness and/or abuse and a ground under the Code. In the absence of such a nexus, no violation of the Code can be found. Accordingly, the allegations that pre-date the applicant’s departure on medical leave in October 2009 are outside the jurisdiction of the Tribunal.
7The applicant alleges that once she was on medical leave, she was asked to provide private medical information on the form for what appear to be short-term disability benefits. On the face of this allegation, the applicant does not allege conduct that would amount to discrimination on the basis of a ground under the Code, and this allegation is also dismissed.
8This leaves the applicant’s allegations concerning the difficulties she had returning to the respondent on staggered hours in December 2009 and January 2010. She alleges that her doctor advised this accommodation to ease her back into her job. It is not plain and obvious that this alleged conduct does not amount to discrimination on the basis of disability, and it would not be appropriate to dismiss such allegations on the basis of jurisdiction at this stage.
DELAY
9While the applicant talks about the last incident with the respondent occurring on May 31, 2010, this was simply the acceptance of her resignation. While she refers to the “duplicitous nature” of the individual who wrote the letter being apparent on the face of the letter of acceptance, this is not discriminatory conduct within the meaning of the Code. The last incident in which discriminatory conduct is alleged to have occurred took place on January 5, 2010, more than 19 months before the applicant filed her Application.
10Section 34 of the Code states in part:
(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.
11In the NOID, the applicant states that the delay is “fully related to the ongoing issues of [her] health.” At this juncture, it is not plain and obvious that the delay was not incurred in good faith. The Tribunal directs that there be a half-day preliminary hearing on this issue.
12The onus is on the applicant to establish that the delay in filing was incurred in good faith. In order to do this, it will be necessary for her to provide evidence in support of claim that she experience “ongoing issues” with respect to her health that prevented her from filing her Application with the Tribunal within the one-year time limit, or at least earlier than she did.
13The Tribunal notes that the applicant makes the following comment in section 11: of her Application, “I will also not open my medical file to anyone.” In order to prove that the delay was incurred in good faith, (or her claim that her health condition was not accommodated by the respondent), it may well be necessary for the applicant to provide the very medical documentation she is indicating she is refusing to give.
14In light of the applicant’s stated position, she is directed to summarize the medical information upon which she intends to base her good faith claim, and to file with the Tribunal and deliver to the other parties a complete list of documents upon which she intends to rely in order to prove that the delay was incurred in good faith, no later than four weeks from the date of this decision. This list of documents must include any medical documentation that she intends to rely on in support of her claim of good faith claim. If the Applicant fails to deliver and file the summary and document list as required, the Tribunal may deem her Application abandoned and close her file or take such other steps as are appropriate.
15The respondent will be served with a copy of the Notice of Application, the NOID and this Interim Decision. It will be entitled to participate in the preliminary hearing, but will not be required to file a Response until the Tribunal issues a decision on the issue of delay.
Order and Direction
16The Tribunal orders and directs as follows:
the allegations as they relate to reprisal are dismissed for the reasons above;
the allegations that pre-date the applicant’s departure on medical leave in October 2009 are dismissed for the reasons above;
the Tribunal will schedule a half-day, preliminary hearing on the issue of delay at which the applicant will have to establish that the delay in filing was incurred in good faith; and
the Applicant must file and deliver a summary of the basis for her claim of good faith delay and provide a list of documents upon which she intends to rely in support of her position no later than four weeks from the date of this decision.
17I am not seized of this matter.
Dated at Toronto this 9th day of November, 2011.
“Signed by”
Naomi Overend
Vice-chair