Stillo v. Toronto Transit Commission, 2011 HRTO 2143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sherri Stillo

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

DECISION

Adjudicator: Eric Whist

Date: November 29, 2011

Citation: 2011 HRTO 2143

Indexed as: Stillo v. Toronto Transit Commission

APPEARANCES

Sherri Stillo, Applicant ) Dean Ardron, Counsel

Toronto Transit Commission, ) Marni Tolensky, Counsel

Respondent )

Amalgamated Transit Union ) Dean Ardron, Counsel

Local 113, Intervenor )

1This Application was filed on July 29, 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 discrimination in employment on the basis of disability. The Application alleges that the respondent discriminated against the applicant in two respects: first, when it failed to find her a position that would accommodate her medical restrictions and second when it later placed her in a position that did not accommodate her medical restrictions.

2On October 5, 2010 the applicant’s bargaining agent, the Amalgamated Transit Union Local 113 (the “Union”), filed a Request to Intervene. In an Interim Decision dated October 22, 2010, 2010 HRTO 2133, the Tribunal granted the Union’s request.

3On November 29, 2010, the respondent filed its Response in which it made two preliminary requests. It requested that the Application be dismissed for delay pursuant to section 34 of the Code. It further requested that the Union be named as a respondent, a request that the Union and the applicant subsequently opposed.

4In an Interim Decision dated March 22, 2011, 2011 HRTO 571, the Tribunal determined that a half day in-person preliminary hearing would be held to consider the respondent’s request to dismiss the Application for delay. The Tribunal determined that for the purposes of considering the preliminary issue of delay, the Union would maintain its intervenor status and the issue of whether the Union should be named as a respondent would be dealt with subsequently, if necessary.

5The hearing was held on September 12, 2011. At the hearing I heard evidence from the applicant followed by submissions from both parties solely on the issue of delay. At the hearing both parties provided documentary evidence and case law for my consideration. In making my decision I have also considered information relevant to the issue of delay that was contained in the Application, Response and Reply.

6For the reasons that follow the Application is dismissed for delay.

SUMMARY OF KEY EVIDENCE

7At the hearing, the applicant affirmed the truth of the statements made in her written witness statement and was then subjected to a cross-examination, followed by a re-examination.

8The applicant testified that she was hired by the respondent as a Wheel Trans Operator in December 2005. The applicant became ill with the result that in March 2006 she was placed into another position under the respondent’s Transitional Work Placement (“TWP”) program. In May 2006 the applicant was placed into a further TWP position and was in this position until December 2006. She continued to experience health issues. In April 2007, following an Independent Medical Examination, the applicant was advised that she was being placed on “Permanent Medical Restriction” (“PMR”) because of the nature of her medical conditions. It appears her last day in a TWP position was May 11, 2007.

9The applicant did not work during the period May 14, 2007 to March 11, 2008. The applicant testified that during this period she unsuccessfully bid on a number of available positions posted by the respondent. It is the applicant’s contention that the respondent did not accommodate her during this period when it failed to find and place her in a position that would accommodate her medical needs and that this constitutes discrimination based on disability.

10On March 14, 2008 the applicant was placed in a Car House Sweeper position. The applicant alleges that the Car Sweeper position failed to appropriately accommodate the applicant’s medical restrictions and as such this constitutes further discriminatory treatment by the respondent.

11The applicant was employed as a Car House Sweeper until October 18, 2008 at which time she successfully bid on a Dispatch position with the respondent. The Application raises no allegations of discrimination in relation to the applicant’s employment since she has been in the dispatch position.

12However, the applicant was of the view that she was owed $13,702 for the period May 14, 2007 to March 11, 2008 while she was not working. The applicant calculated that $13,702 was the difference between what she would have earned had she been employed by the respondent during this period of time and the financial benefits she did receive during this period.

13In April 2008 the Union, on behalf of the applicant, entered into what the applicant described as negotiations with the respondent regarding her claim for financial compensation. The applicant testified that she was repeatedly told by Ken Morton, a vice-president of the Union, that negotiations with the respondent about her claim were progressing and he was dealing with a range of representatives for the respondent in his efforts to obtain this compensation. The applicant testified that she believed she could not pursue other legal actions while working, and that she believed it was her union’s job to protect her interests.

14On August 2, 2009 the respondent’s Director of Employee Relations, Gemma Piemontese, sent a letter to Mr. Morton stating that the respondent was of the opinion that the applicant was not entitled to any financial compensation for the period May 14, 2007 to March 11, 2008. The letter states that the respondent had earlier mistakenly offered the applicant $1,700 to resolve the dispute and that while the respondent was of the opinion that the applicant was not entitled to this money the applicant would be paid this amount on a without prejudice basis.

15The applicant testified that in August 2009 she had a discussion with Mr. Morton as to what to do next in light of learning that “the current process was unsuccessful”. The applicant testified that she believes it was at this time she understood that she had rights under the Code. She testified that it was her understanding that Mr. Morton continued to negotiate with the respondent for her compensation after August 2, 2009.

16The applicant also testified that was unaware of the respondent’s August 2, 2009 letter at the time it was sent to Mr. Morton. The applicant testified that she only learned of the August 2, 2009 letter when a copy of the letter was provided to her in 2010 by Manny Sforza, who had replaced Mr. Morton as a Union vice-president. The applicant testified that when she did see the letter in 2010 she realized that there was no point in further negotiations with the respondent and so then filed her Application with the Tribunal.

ANALYSIS

17Section 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 of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) if the delay is incurred in good faith and does not cause substantial prejudice to the respondent. Section 34 specifically 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.

Timeliness of the Application

18The Application was filed on July 29, 2010. There is a significant dispute between the parties as to when the last incident of discrimination occurred. The respondent submits that the Application raises allegations of discrimination in reference to when the applicant was not working from May 2007 to March 2008 and when the applicant was employed in a Car House position from March 2008 until October 18, 2008. It submits that there are no allegations of discrimination in relation to the job the applicant obtained in October 2008 as a dispatcher, hence there are no possible incidents of discrimination after October 18, 2008 which is over 19 months before the Application is filed. As a consequence the respondent submits that the Application was filed beyond the one year time limit requirement set out in section 34(1).

19The respondent submits that the applicant’s pursuit of compensation between April 2008 and August 2009 is not part of a series of incidents of discrimination and the respondent’s decision of August 2, 2009 not to provide compensation does not constitute, in of itself, a further incident of discrimination that makes all of the other prior allegations timely. The respondent submits that in seeking financial compensation in the period April 2008 to August 2009 the applicant was, in effect, pursuing her rights to remedy for the alleged discrimination that took place from May 2007 to March 2008. The respondent submits that it is the type of action that the Tribunal has considered in Darroch v. King (Township), 2010 HRTO 2268 and Colbeck v. Pinecrest-Queensway Community Health Centre, 2010, HRTO 1435. The respondent submits that in these decisions the Tribunal determined that incidents in which a respondent refused to respond to an applicant’s efforts to address past alleged discrimination were not independent incidents of discrimination that could trigger further claims of discrimination.

20The respondent further submits that its decision to not pay the requested compensation is not a contravention of the Code. It submits that to find otherwise would mean that an applicant could reactivate the one year limitation period by asking the respondent to pay money arising from an alleged discriminatory incident. According to the respondent, such an interpretation would mean that the one year limitation for filing a complaint could be extended indefinitely and respondents would have no protection under the Code under section 34(1).

21The applicant submits that the Application is timely in that the respondent’s actions in response to the applicant’s efforts to seek compensation in the period April 2008 until August 2009 are part of a series of continuing incidents of discrimination which culminate in the respondent’s August 2, 2009 decision to deny the applicant compensation. The applicant submits that the Tribunal’s decision in Mafinezam v University of Toronto, 2010 HRTO 1495 accepts that there can be a continuing contravention of the Code when there is a succession of separate acts of discrimination of the same character. She further submits the Tribunal’s decision in Pakarian v. Chan, 2010 HRTO 457 supports her arguments in that it defines the term “series” as a number of things or events of the same class coming one after another in spatial or temporal succession.”

22I find that the August 2, 2009 letter from the respondent does not constitute an alleged incident of discrimination in a series of incidents for the purposes of section 34 of the Code. The Application relates to incidents of alleged discrimination that occured during the applicant’s employment prior to October 18, 2008 when the applicant alleges the respondent failed to appropriately accommodate her. In my view, the applicant’s interactions with the respondent in the period April 2008 to August 2009 represent her efforts to address and remedy the alleged acts of discrimination to which the Application applies and do not constitute, in and of themselves, further incidents of discrimination.

23The applicant describes her interactions with the respondent in this period April 2008 to August 2009 as negotiations. These negotiations were in relation to resolving disputes over events that took place in 2007 and 2008. The fact that the respondent decided in August 2009 not to compensate the applicant (in effect, disagreeing with her assessment of what occurred in 2007 and 2008) does not constitute a separate incident of discrimination.

24I accept and choose to follow the reasoning in Darroch v. King (Township), 2010 HRTO 2268 and Colbeck v. Pinecrest-Queensway Community Health Centre, 2010, HRTO 1435. In my view the applicant’s efforts to obtain compensation for May 2007 to March 2008 is appropriately characterized as an effort to obtain a remedy for a previous alleged act of discrimination and the August 2, 2009 decision not to provide this compensation is not a further incident of discrimination.

25The applicant made a further argument about why August 2, 2009 constitutes a violation of the Code. The applicant submits that the respondent had a duty to investigate the applicant’s allegations that she was not appropriately accommodated during the period May 2007 to March 2008 and that this duty was triggered when the applicant approached the respondent in April 2008 seeking financial compensation for the way she was treated by the respondent during this earlier period.

26The applicant submits that after April 2008 the respondent was well aware of her concerns about earlier discriminatory treatment given the correspondence in evidence between the applicant and the respondent and the respondent’s internal communications. The applicant submits that, in effect, the respondent was investigating the applicant’s allegations of discrimination during the period April 2008 to August 2009 and that in deciding not to provide compensation on August 2, 2009 the respondent chose to no longer consider the applicant’s allegations as to what happened between May 2007 and March 2008, thus ending its investigation.

27The applicant submits that it is open to her to allege that the respondent’s August 2, 2009 decision constitutes a failure by the respondent to meet its duty to investigate. Since a failure to investigate can constitute a violation of the Code the respondent’s August 2, 2008 decision is a further incident in a series of incidents of discrimination which occurs within one year of the filing of the Application and which then makes all of the applicant’s earlier allegations timely under section 34(1) of the Code. The applicant submits that the failure to investigate an allegation, if accepted as true, is enough at this preliminary stage to establish a prima facie case of discrimination that the respondent must, in turn, respond to. She argues that the Tribunal cannot dismiss the Application for delay, at this time.

28The respondent submits that the applicant is trying to recharacterize the facts of the case by arguing that the respondent had failed to meet its duty to investigate. The respondent submits that the applicant has plead no facts in relation to an alleged failure to investigate, that nowhere in the Application or any of the other documents filed by the applicant does the applicant refer to an investigation by the respondent or a failure in a duty to investigate. The respondent submits that the applicant is now trying to argue that the ongoing efforts by the parties to negotiate compensation should be re-read as an investigation in order to have the August 2, 2009 letter characterized as an incident that demonstrates that the respondent has failed to investigate in order that the Application filed in July 2010 meets the Code’s one year time deadline.

29I fully accept that a respondent has a duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination-free environment. See Laskowska v. Marineland of Canada Inc. 2005 HRTO 30. However, I do not accept the applicant’s contention that the respondent’s August 2, 2009 letter indicates that the respondent failed in its duty to investigate and is, on this basis, a potential violation of the Code.

30I note that nowhere in her Application or any other materials does the applicant allege that the respondent failed to investigate an allegation of discrimination or provide particulars as to how the respondent may have failed to meet a duty to investigate. The Application raises no issues with the respondent’s conduct or actions during the period between April 2008 and August 2009 when the applicant’s request for compensation was being considered. This allegation that the respondent failed to meet its duty to investigate only arises as part of the applicant’s submissions during the hearing.

31The applicant submits that the duty to investigate was triggered by her request to the respondent in April 2008 for compensation. However, as noted, the Application does not allege that this negotiation process was flawed or that the respondent’s failed to reasonably consider the applicant’s request during this process. On August 4, 2009, approximately 16 months later, the respondent made a decision not to provide compensation to the applicant. I do not accept the bald, unsupported claim that the respondent’s August 2, 2009 decision indicates that the respondent acted unreasonably in considering and responding to the applicant’s allegations.

32I agree with the respondent that the applicant has attempted to re-characterize events and to equate the August 2, 2009 decision to refuse to pay compensation as evidence of a failure to investigate in order to make the Application timely. I am not so persuaded.

Was the Delay in Filing the Application Incurred in Good Faith

33The Tribunal has held that to in order to establish that a delay in filing an Application was incurred in good faith under section 34(2) an applicant must meet a fairly high onus to provide a reasonable explanation for the delay. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

34The applicant submits that there is a subjective and objective component to determining whether someone has acted in good faith. The applicant submits that she honestly believed that she was involved in a process with the respondent that could lead to compensation and that she pursued her compensation request even past August 2009 because she believed that the negotiations with the respondent were ongoing and that she had not been told that there was a definite “no” to her request. The applicant submits that this subjective belief in the process she was following should be considered reasonable.

35The applicant further submits that it would not have been in the public interest for her to have first pursued an Application before the Tribunal without giving the respondent a chance to directly respond to her request, that it was preferable to first pursue negotiation rather than litigation. The applicant submits that once she was fully aware that her efforts to negotiate would not succeed her then pursued an application with the Tribunal in a timely fashion and that this is, objectively, a reasonable course of action.

36The respondent submits that the applicant was represented by her union who would have been aware of the human rights issues the applicant was raising in relation to her employment in 2007 and 2008 and that there was a choice made to pursue internal negotiations with the respondent rather than an Application to the Tribunal (or a grievance under the collective agreement). The respondent submits that the Tribunal has determined in a number of decisions that effort’s to pursue one’s rights without filing an Application do not, without more, justify a waiver of the one year limitation period under section 34(2). See Gagne v. Maximum Mining 2010 HRTO 689 and Belamine v Laurentian University of Sudbury 2010 HRTO 1407.

37In determining whether the applicant has acted in good faith it is important to note that the subject of the applicant’s internal request for compensation focuses on not being paid by the respondent during the period May 2007 to March 2008 and that her Application alleges that the respondent failed to appropriately accommodate the applicant not only from May 2007 to March 2008 but for the subsequent period of May 2007 to October 2008 while the applicant was employed as a Car House Sweeper. Accordingly, in my view, if the applicant had filed her Application by October 2009 it would likely have been timely. In other words, the applicant’s initial pursuit of an internal process to address her interest in financial compensation did not necessarily preclude her from meeting the time requirements to file an application with the Tribunal. She could have filed an application after learning of the respondent’s decision on August 2, 2009. An application filed by October 2009 would have been timely and would include her allegations of how she was treated by the respondents during the period May 2007 to March 2008 if the applicant could establish that the alleged treatment she received as a Car House sweeper involved further incidents of discrimination in a series of incidents that stretched back to May 2007 to March 2008.

38My principal concern is whether the applicant has provided a reasonable explanation for waiting from October 2009 to July 2010 to file her Application. In my view she has not and on this basis I find that the applicant has failed to meet the requirements of section 34(2).

39The applicant contends that she did not immediately act after August 2009 because negotiations with the respondent continued and that she was unaware of the specifics of the respondent’s August 2, 2009 letter. I do not find these claims to be reasonable explanations for the applicant’s delay in filing her Application.

40I am of the view that the applicant realized that the respondent’s decision on August 2, 2009 denying her compensation was significant and that she could have pursued her rights under the Code at that time.

41I note that In her Application the applicant does not characterize the negotiations with the respondent as having taken place between April 2008 and some time in 2010 but rather from April 2008 to August 2009:

From April 2008 to August 2009 Ms. Stillo and her Union representatives repeatedly and consistently sought to recover her income shortfall. Morton pursued compensation for Ms. Stillo throughout this period and engaged in negotiations with a number of TTC supervisory staff including… (para 74)

42The applicant also states in her Application (and her witness statement) that she realized after August 2, 2009 that the respondent was not going to provide the requested compensation:

On August 2, 2009 Gemma Piemontase [sp] of the TTC advised the Union via letter that the TTC’s position was that Ms. Stillo was not entitled to any compensation as she was treated pursuant to the Commission’s Permanent Medical Restriction process. It was at this point that Ms. Stillo realized that the TTC would not be willing to compensate her for its failure to accommodate her in a timely fashion. (para 75).

43The applicant also testified that she had a discussion with Mr. Morton after the August 2, 2009 decision as to what to do next in light of learning that “the current process was unsuccessful”.

44It is possible that some sort of negotiations continued between the Union and respondent after August 2009 as maintained by the applicant, although I note that the applicant did not provide details as to what these were. I further note that while I have a number of documents before me that show the applicant was seeking compensation prior to August 2009 and that the respondent was actively considering this request there is no documentary evidence before me to indicate what negotiations about the applicant’s compensation continued after August 2009. However, even if there was some sort of contact or negotiation between the Union and the respondent after August 2009 I am of the view that this does not provide a reasonable explanation for the delay in the filing of the Application in light of the respondent’s position as stated in its August 2, 2009 letter.

45The applicant submits that she was unaware of the August 2, 2009 letter until sometime in 2010 and that explains, in part, her failure to file an Application until July 2010. I do not find this credible. I find it improbable that the applicant would not have been aware soon after August 2, 2009 of the respondent’s letter to Mr. Morton. The applicant did testify that she was in constant communication with Mr. Morton while he was negotiating with the respondent and, more importantly, that she had a discussion with Mr. Morton in August about what to do next which suggests to me knowledge of the respondent’s decision. The August 2, 2009 letter is a formal, written decision by the respondent that it did not intend to provide the applicant with the compensation she had been seeking since April 2008. I do not find it credible that the Union would not communicate this highly significant decision to the applicant. If the applicant did not actually see the letter I am satisfied that she would have likely known its specific contents (including the commitment to allow the applicant to keep $1,700 already given to her).

46It is my view that the applicant likely knew in August 2009 that the respondent was not intending to compensate her for its alleged failure to accommodate her as is stated in her Application and witness statement. In my view the applicant has tried to suggest that it was not until some time in 2010 that she came to know of the August 2, 2009 letter and its contents as a way of accounting for why she did not file her Application until July 2010, eleven months after the respondent stated that it would not provide her with her requested compensation.

47The applicant did not explain why she delayed pursuing her allegations about the Car Sweep position until July 2010.

48As stated in Miller the Tribunal expects that an applicant will act with due diligence in pursuing their rights under the Code and that there is a fairly high onus on an applicant to provide a reasonable explanation for not acting. In my view the applicant has not met this onus given her failure to provide a credible and reasonable explanation for the delay in filing her Application after August 2009.

49I do note that the applicant did refer in her testimony to not knowing her legal rights and relying on the Union to pursue her interests (it must be noted that she also testified that she thought her negotiations would cease if she pursued other legal action). It appears the applicant was claiming that her ignorance of the law and her reliance on the Union were factors that contributed to the delay in the filing of her Application. However, 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. It was incumbent on the applicant, in my view, to act with greater diligence in understanding and pursuing her rights including her right to file an Application including after August 2009.

50The respondent made a number of arguments about the prejudice it would face if the Application was to proceed. However, the Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether any party will be substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579).

51For these reasons the Application is dismissed.