HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sathasivam Thambipillai
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Thambipillai v. Toronto District School Board
WRITTEN SUBMISSIONS
Sathasivam Thambipillai, Applicant On his own behalf
Toronto District School Board, Respondent Wendy Lopez, Counsel
1The applicant filed an Application on April 21, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination on the basis of race, colour, ancestry, place of origin, and ethnic origin in employment.
2The purpose of this Interim Decision is to deal with a Request for an Order During Proceedings (“Request”) filed by the respondent. The respondent seeks the early dismissal of the Application because it was filed outside the one year limitation period provided for in the Code.
3For the reasons that follow, the Request is granted in part. Those portions of the Application that relate to incidents in December 2005 and October 2007 are dismissed pursuant to section 34 of the Code.
4The Application was timely in regards to the May 2009 incident. Accordingly, those portions of the Application that relate to the May 2009 incident may proceed.
OVERVIEW
5The applicant is employed by the respondent. He alleges that the respondent discriminated against him when it denied him job opportunities in December 2005, October 2007, and May 2009. He states that he was not considered for the Maintenance Team Leader or Family Team Leader positions even though he is well qualified.
6In his Application, the applicant states that he filed the Application more than one year after the alleged incidents of discrimination because he “wanted to give a few more opportunities” to the respondent.
7The respondent has filed a Response denying the allegations of discrimination. It states that the applicant was unsuccessful in three job competitions that took place in December 2005, October 2007, and May 2009. The respondent argues those portions of the Application that relate to the 2005 and 2007 job competitions are outside the Code’s one year limitation period. It argues that, in any event, the May 2009 job competition process was never completed and the job was never filled.
8Along with its Response, the respondent filed a Request for an Order During Proceedings seeking the early dismissal of the Application for delay, pursuant to section 34 of the Code. The respondent argues that three separate job competitions for positions within different regional areas, each of which occurred more than one year apart, do not constitute a series of events for the purposes of section 34 of the Code. The respondent states that the delay in filing was not in good faith and is prejudicial.
9The applicant has filed a Reply in which he objects to the early dismissal of the Application. He has not filed a Response to the Request and the time for doing so under the Rules has elapsed.
10In his Reply, the applicant explains that the delay in filing the application is due to the respondent’s failure to respond to his inquiries. In this regard, he has attached emails dated in March 2010, inquiring about the results of the 2009 job competition. While some of the applicant’s emails reference the earlier competitions, his inquires do not seem to relate to the results of the 2005 and 2007 competitions.
ANALYSIS
11Section 34 of the Code states:
(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.
12Pursuant to section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it 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.
Was the Application filed within the limitation period?
The May 2009 job competition
13The Application, filed on April 21, 2010, was filed within one year of the May 2009 job competition. Pursuant to section 34 of the Code, there is no basis to dismiss those portions of the Application that relate to the 2009 incident.
The December 2005 and October 2007 job competitions
14The Application was filed approximately four and a half years after the December 2005 job competition and approximately two and a half years after the October 2007 job competition.
15Considered individually, each of these incidents relate to matters that occurred more than one year before the Application was filed. Accordingly, I must determine whether the three job competitions form a series of events for the purposes of section 34 of the Code.
16The Tribunal has had a number of opportunities to consider what is meant by a “series of events” and whether separate incidents may reasonably be viewed as a pattern of conduct. See, for example, Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Baisa v. Skills for Change, 2010 HRTO 1621; Mafinezam v. University of Toronto, 2010 HRTO 1495; and Aberdeen v. University of Toronto, 2010 HRTO 2514.
17Generally, events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than one year between events has, in a number of cases, been deemed 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.
18In determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues.
19The three job competitions in question are separated by significant periods of time: 19 and 22 months, respectively. The respondent states that the jobs applied for were located in different regions within its operations and the individuals involved in the staffing process were different in each case. According to the respondent, the job competitions are separate and discreet events that involve different positions, different regions within the respondent’s operations, and different decision-makers.
20In my view, in the circumstances of this case, the three job competitions do not form part of a series of events for the purposes of section 34 of the Code. I am mindful of the significant temporal gap between the incidents and of the fact that there is little connection between them. While they all involved the staffing practices of the respondent, the incidents are so separate in terms of time, location and decision-makers that I cannot conclude that they form part of a series of incidents.
21I have concluded that the Application was filed well over a year after each of the 2005 and 2007 incidents. I must now determine whether the delay in filing the Application in regards to those incidents was in good faith and, if so, whether it results in substantial prejudice.
Was the delay in good faith within the meaning of the Code?
22To establish good faith, the applicant must (at a minimum) provide some reasonable explanation for the delay in filing the Application: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424.
23In this case, the applicant has explained the delay by stating:
a. that the respondent failed to respond to his inquiries, which he says delayed the filing of the Application; and
b. that he wanted to give the respondent further opportunities.
24In reviewing the materials filed by the applicant, I understand that the inquiries he refers to relate to the 2009 job competition. While his emails reference the earlier job competitions, his inquiries relate specifically to the outcome of the 2009 competition.
25Waiting for the information regarding the outcome of the 2009 competition is not a reasonable explanation for delaying in filing allegations regarding the 2005 and 2007 incidents.
26In any event, the Tribunal has repeatedly held that waiting for other proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a good faith explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church-Ottawa, 2010 HRTO 991. Thus, even if the applicant’s inquiries had related to the earlier job competitions, waiting for a response for the respondent would not be a good faith reason for the delay.
27Similarly, delaying the filing of the Application in order to give the respondent “a few more opportunities” is not a reasonable explanation for the delay within the meaning of section 34 of the Code.
28For these reasons, those portions of the Application that relate to the 2005 and 2007 job competitions are dismissed pursuant to section 34 of the Code.
29As it relates to the May 2009 incident, the Application was filed within the limitation period. Those portions of the Application that relate to the May 2009 job competition may proceed.
30I am not seized of this matter.
Dated at Toronto, this 10th day of March, 2011
“Signed by”
Michelle Flaherty
Vice-chair