Rowe v. 416 Community Support Centre for Women, 2011 HRTO 710

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawnett Rowe

Applicant

-and-

416 Community Support Centre for Women and Rosie Smythe

Respondents

DECISION

Adjudicator: Eric Whist

Date: April 13, 2011

Citation: 2011 HRTO 710

Indexed as: Rowe v. 416 Community Support Centre for Women

APPEARANCES

Shawnett Rowe, Applicant ) Sydney Klotz, Counsel

416 Community Support for Women ) Laura Cassiani, Counsel and Rosie Smythe, Respondents )

1This Application was filed on June 8, 2010 under section 34 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 race, colour, ancestry, place of origin and ethnic origin.

2The applicant alleges she resigned from her employment with the respondent 416 Community Support for Women (the "Centre") because of the discrimination and harassment she experienced during her employment at the Centre and in her dealings with the personal respondent, Rosie Smythe, the Centre's Executive Director. After the applicant resigned she alleges the personal respondent interfered with the applicant's efforts to find alternative employment and intervened for discriminatory reasons with Toronto North Support Services, a prospective employer, thus preventing the applicant from securing other employment.

3This Decision addresses the respondents' Request to dismiss the Application for delay pursuant to section 34 of the Code. The respondents also submit the Application should be dismissed on the basis of s.45.1 of the Code or as an abuse of process. In their view the substance of this Application was appropriately dealt with by the Tribunal when it dismissed the applicant's previous Application and it would be unfair to permit the applicant to relitigate that dispute. See Rowe v. 416 Community Support for Women, 2010 HRTO 2235.

BACKGROUND

4A brief chronology of events is as follows. The applicant filed a Human Rights Complaint (the "Complaint") with the Ontario Human Rights Commission (the "Commission"), on May 23, 2007. This Complaint alleged discrimination in employment in relation to the applicant's employment with the respondent on the basis of race and ethnic origin. The Complaint lists a series of alleged incidents of discrimination that occurred while the applicant was employed at the Centre.

5On May 19, 2009, the applicant filed a Transitional Application (the "2009 Application") with the Tribunal under section 53(5) based on the subject-matter of the Complaint filed with the Commission. On January 29, 2010, the applicant's counsel filed a Request for an Order during Proceedings (the "Request") asking that the 2009 Application be amended to add further particulars.

6That Request was allowed in part. In its Interim Decision of February 23, 2010, 2010 HRTO 415 (Can LII), the Tribunal permitted the 2009 Application to be amended to include particulars which provided more context and detail to the original Complaint filed with the Commission. The allegations relating to the applicant's resignation and attempts to obtain alternative employment were not found to be part of the subject-matter of the original Complaint. The Request to add those allegations was dismissed. In the Interim Decision the Tribunal noted that the applicant could raise these issues in a section 34 application subject to the requirements of the Code. It is these two additional allegations that form the basis of the Application before me. As noted above the 2009 Application was dismissed by the Tribunal in November 2010.

7On March 10, 2011 I heard the respondents' Request to dismiss the present Application. The applicant was not present at the hearing. The applicant's counsel indicated that the applicant was prepared to rely on her pleadings and counsel's submissions. After the hearing I received a letter from applicant's counsel dated March 9, 2011, with a number of enclosed documents that counsel requested that I consider. I do not have to make a ruling on this Request as I am satisfied that the contents of these documents were already disclosed to the respondents and before me at the hearing.

REQUEST TO DISMISS FOR DELAY

8Section 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) of alleged discrimination if the delay in applying 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.

9There was no dispute that the last incident of alleged discrimination occurred in May 2007 and that the present Application was filed in June 2010. The applicant has not met the requirements for filing this Application within one year of the last incident of alleged discrimination.

10In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (Miller), the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. In Miller the Tribunal also set out what is required to establish that delay has been incurred "in good faith":

In my view, where an Applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the Applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applications to provide a reasonable explanation for the delay

11I find that the applicant has failed to establish that the delay in filing her Application was incurred in good faith. I do not find that she has provided reasonable explanations for the multiple delays in bringing forward her allegations of discrimination under the Code.

12In May 2007 the applicant filed her Complaint with the Commission in which she identifies a series of alleged discriminatory acts that occurred while she was employed at the Centre from July 2006 to May 2007. This Complaint makes no mention of the applicant being forced to resign from her employment or the personal respondent interfering with her efforts to find alternative employment, the allegations that form the basis of her 2010 Application.

13The applicant submits that these allegations were not included as part of her Complaint because the Commission's two page complaint form limited the space in which she could provide information in relation to her allegations of discrimination. The applicant submits that at the time she prepared her Complaint she believed that it was open to her to further elaborate on her allegations of discrimination as part of any hearing process into the merits of her Complaint. The applicant further submits that she relied on the advice of a mentor and a fellow staff member of the Centre to file her complaint and did not, at the time, have legal counsel.

14In May 2009 the applicant filed her Transition Application based on the subject matter of the Complaint filed with the Commission. The applicant's counsel submits that it is significant that the applicant included in her Transition Application a request for a financial remedy of $47,000 on the basis that "(T)his is what I would have started at if Rosie did not interfere with my new position at Toronto North [Toronto North Support Services]". It appears that counsel is arguing that the inclusion of this information demonstrates that the applicant believed, in good faith, that her 2009 Application could address her entire experience with the respondents including those matters covered in the present Application.

15There was no information before me to indicate that the applicant attempted to amend her Complaint with the Commission in the period May 2007 to May 2009 or her Transition Application when it was filed with the Tribunal in May 2009.

16I have reviewed the complaint form the applicant filed with the Commission in May 2007. The form asks that the complainant provide a summary of the incidents being complained about within two allotted pages. The applicant identifies on the form nine incidents, all specific to her work experience at the Centre. In my view the applicant could have included further allegations on the form and that it is not reasonable for the applicant to claim that the physical format of the complaints form prevented her from doing so.

17The applicant submits that she believed she could elaborate on the allegations she did include as part of her Complaint to the Commission in a further hearing process. It is not clear on what basis the applicant believed she could do so, whether, for example, this was the advice she received from the persons helping her file her Complaint.

18In my view the applicant is essentially arguing that she was acting in good faith when she filed her Complaint with the Commission and her 2009 Application and took no further action to pursue her rights because she genuinely believed that both her Complaint and her later 2009 Application would allow her to put forward all her experiences with the respondents for consideration at a hearing. In so doing the applicant is relying on a mistaken understanding of her rights to account for the delay from May 2007 to May 2009.

19In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held that a delay is not incurred in good faith where a party simply says that they were not aware of their rights. They must also establish that they had no reason to make enquiries about those rights.

20The applicant submits that she relied on others for advice in filing her Complaint. However, even if I accept that the applicant was disadvantaged by not having legal advice at the time she first filed her Complaint with the Commission in May 2007 the applicant, according to her written submissions, retained legal counsel in September 2008 and had counsel at the time she filed her Transition Application in May 2009. It is not clear why, under these circumstances, the applicant could not have made enquiries about her rights to determine whether allegations in relation to her resignation from the Centre and to her later efforts to find employment were, in fact, before the Commission or the Tribunal. The fact that the applicant may have assumed they were is not a reasonable explanation for failing to take any additional action.

21After filing her 2009 Application in May 2009 the applicant took no action to have her allegations related to her resignation and her efforts to find further employment before the Tribunal until January 2010. It appears that in December 2010, following an unsuccessful mediation conducted by the Tribunal, the applicant was told by the Tribunal's mediator that she could not rely on her 2009 Application if she wanted to raise issues about the personal respondent's alleged interference in her efforts to find further employment.

22On January 30, 2010 the applicant filed the Request for an Order During Proceedings requesting to amend the 2009 Application. On February 26, 2010 the Tribunal issued its Interim Decision stating that the applicant's Request to amend the 2009 Application to add allegations in relation to the applicant's resignation and the applicant's efforts to find further employment was dismissed and the applicant would have to file a new Application.

23I find that this further eight month delay from May 2009 to January 2010 has not been incurred in good faith. The rationale for this delay appears to be that the applicant continued to believe that she did not have to take any further actions to bring forward the allegations of discrimination that ultimately are included in her 2010 Application. This is a mistaken understanding and is not, in my view, a reasonable explanation for why the applicant did not make any further efforts to pursue her rights to properly have her allegations before the Tribunal.

24The 2010 Application was filed on June 10, 2010. The applicant submits that the reason for the three and a half month delay in filing this Application after the Tribunal's Interim Decision of February 23, 2010 was because the applicant had to prepare and participate in the hearing of her 2009 Application which took place over two days in April and May 2010.

25I do not find that this additional delay was incurred in good faith. The applicant knew in February 2010 that allegations of discrimination dating from 2007 were not properly before the Tribunal and yet waited a further three and half months to file her Application. The applicant stated that she was waiting for another legal proceeding to take place, albeit a proceeding before the Tribunal. The Tribunal has determined that waiting for another legal proceeding is not generally a reasonable explanation for a delay. In Cartier v. Northeast Mental Health Centre (2009 HRTO 1670) the Tribunal stated:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

26It is true that the applicant did not wait for the Tribunal's Decision on her 2009 Application, issued in November 2010, before filing her 2010 Application. Nonetheless, the applicant's decision to wait until the hearing of her 2009 Application was complete indicates, in my view, a lack of due diligence.

27As stated in Miller, supra, an applicant has a fairly high onus to provide a reasonable explanation for the delay in filing an application. The applicant has failed to meet this onus having filed her Application over 36 months after the incidents of alleged discrimination took place, over 30 months after retaining counsel, over 24 months after having first filed her 2009 Application with the Tribunal and three and a half months after being told that she had to file a s.34 Application if she wanted to attempt to pursue these allegations before the Tribunal. I find that the applicant's lack of action over this considerable period of time such that she has not met the test to show that the delays in filing her Application were incurred in good faith and, consequently, the Application is dismissed.

28As I have dismissed the Application for delay I do not need to consider the respondents' further request that the Application be dismissed pursuant to section 45.1 of the Code or as an abuse of process.