Dixon v. Association of Law Officers of the Crown, 2011 HRTO 942

Human Rights Tribunal of Ontario

Between:

Jean Dixon Applicant

-and-

Association of Law Officers of the Crown Respondent

Interim Decision

Adjudicator: Mary Truemner Date: May 17, 2011 Citation: 2011 HRTO 942 Indexed as: Dixon v. Association of Law Officers of the Crown

Written Submissions

Jean Dixon, Applicant | Self-represented

Reasons for Decision

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on October 19, 2010, which alleges that the respondents discriminated against her on the basis of race, colour, ancestry, sex and reprisal. The applicant is a lawyer employed by the Ministry of the Attorney General ("MAG"). The respondents are the Association of Law Officers of the Crown ("ALOC") which is a vocational association of which the applicant is a member, Nicholas Hedley who was the president of ALOC, and Sack Goldblatt Mitchell LLP ("SGM") which is a law firm retained by ALOC as counsel. The Application is comprised of two forms: Form 1 names the respondents and alleges discrimination with respect to employment; Form 1-E names the respondents and alleges discrimination with respect to vocational association. The applicant attached a 176 page Addendum to her Form 1 (her "statement").

2On January 31, 2011, the Tribunal's Registrar issued a Notice of Intent to Dismiss ("NOID") indicating that the applicant's allegations of discrimination appeared to be outside the jurisdiction of the Tribunal because the Application was filed more than one year after the last incident of discrimination described, and because the issues raised relate to the conduct of a lawyer representing an opposing party in another legal proceeding. Because I find that the Tribunal does not have jurisdiction to deal with the Application against Mr. Hedley and SGM as a result of the applicant's delay in filing it, there is no need to address the NOID's reference to their status as counsel. Only delay is addressed in this Interim Decision.

3The applicant filed written submissions on March 1, 2011, in which she argues that there is no delay given that the discrimination is ongoing, and October 14, 2010 is the last date of a series of incidents that she alleges constitute discrimination. She also argues that the Application was brought in good faith and that the respondents have not been prejudiced by any perceived delay.

Background

4According to the Application, the applicant worked for the Family Responsibility Office (the "FRO") continuously from at least 2004 to 2009. The applicant began working on October 13, 2009 at the Ministry of Community and Social Services/Children and Youth Services ("CSS") on a secondment from the FRO. She remained seconded to MCSS until October 12, 2010, at which time her employer was negotiating with her a secondment to the Ministry of Labour ("MOL"). She filed the Application on October 19, 2010.

5It appears from the applicant's statement that the allegations against the respondents arise mainly because 1) ALOC did not "stand up" for the applicant or file grievances on her behalf while she worked with the FRO where she felt she was being treated badly by her employer in various contexts; 2) ALOC was not pursuing a grievance filed April 6, 2009 against her employer (with respect to her suspension for a day in March 2009 which she says is related to alleged harassment by another employee); 3) ALOC communicated with the applicant's employer without her express permission; and 4) Mr. Hedley and SGM had conversations with the applicant in which she alleges they made mocking, belittling, threatening, condescending, patronizing and/or infantilizing remarks and observations that the applicant believes constitute discrimination.

Jurisdiction with respect to Delay

6Section 34 of the Code provides that an application must not be filed more than one year after the incident or last incident in a series to which it relates. A late application is within the Tribunal's jurisdiction only if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by it. Sections 34 (1) and (2) read as follows:

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.

7In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paras. 24-25, the Tribunal made the following general comments about untimely applications:

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 applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

SGM

8With respect to allegations against SGM, the applicant alleges that her conversations with Mr. Hedley and SGM lawyers violated the Code. According to the applicant, conversations with SGM took place on the following dates:

• January 29, 2009 when a lawyer from SGM representing ALOC attended a Pre-Disciplinary Meeting with the applicant and the employer;
• February 18, 2009 at SGM's offices with Mr. Hedley when SGM lawyers shuttled between the employer and the applicant to discuss what steps might be taken to improve the applicant's work environment; and
• March 24, 2009 at SGM's offices in a meeting with Mr. Hedley and the applicant when SGM lawyers provided advice on incidents between the applicant and her employer.

9The Application does not contain any reference to the applicant having had any communications with SGM afterwards, specifically, within the year preceding the applicant filing the Application (October 19, 2009 to October 19, 2010). There is nothing described in the Application to indicate that SGM participated in alleged discrimination within one year of the filing of the Application other than to receive instructions from its client, ALOC, to provide advice about whether ALOC should proceed with the applicant's grievance. The Application does not indicate what advice, if any, SGM gave ALOC, and it is therefore unnecessary to review whether the Tribunal has jurisdiction over advice counsel may give a party that may be adverse to the applicant. I find that the most recent incident that could arguably have involved SGM directly in terms of alleged discrimination was the meeting of March 24, 2009. The applicant therefore filed her Application more than one year from the date of the last incident involving SGM.

10Having found that the allegations against SGM are out of time, I must now decide if the delay was incurred in good faith.

11The applicant is a lawyer and was working in a seconded position throughout the one year period prior to the filing of her Application. According to the applicant, she retained counsel by August 4, 2009 for advice, some of which concerned Mr. Hedley and SGM. The applicant argues in her submissions responding to the NOID that the Application "has been brought in good faith," but she does not explain what she means in terms of addressing what might have prevented her from filing her Application earlier. Accordingly, I cannot find good faith to excuse the delay between what she argues was discrimination in her last meeting with SGM on March 24, 2009 and the date she filed the Application some 18 months later. The Application against SGM is therefore outside the Tribunal's jurisdiction and the style of cause has been amended to reflect the removal of SGM as a respondent.

Mr. Hedley

12During the applicant's secondment to CSS and the year preceding the filing of the Application, the applicant describes only one contact with Mr. Hedley. The applicant refers to a conversation on January 25, 2010 when Mr. Hedley told the applicant that ALOC had not yet decided whether to pursue the grievance against her employer. There are no other incidents described by the applicant in that year long period of time which involve Mr. Hedley.

13At paragraph 371 of her statement, the applicant describes the January 25, 2010 conversation with Mr. Hedley as follows:

On January 25, 2010, I contacted ALOC regarding access to the member e-site. Hedley answered the phone. During our conversation, I asked Hedley about the status of the grievance. He indicated that nothing had happened and that they were waiting to see the results of my new position. I stated that I did not see the correlation. I also indicated that I was advised by ALOC that only they could pursue the suspension, and that I had no say in the grievance process. I reminded Hedley that it had been months since the grievance was initiated, and indicated that I wanted ALOC them [sic] to proceed with the grievance. I never heard back from ALOC and the grievance has yet to be prosecuted.

14There is no allegation of a violation of the Code in the above paragraph. I therefore find that the Application against him is out of time. Given the lack of any explanation in the applicant's submissions about how the delay might have been incurred in good faith, the Application against Mr. Hedley is outside the Tribunal's jurisdiction. The style of cause has been amended to reflect the fact that he is no longer a respondent.

ALOC

15In her "Overview" of the applicant's statement, the applicant ends her description of the actual events of alleged discrimination by stating, "In October 2009, after much stressful and hostile interaction with my employer, ALOC, and their cohorts, I was seconded to another Legal Services Branch, covering for a woman who was on maternity leave (since June 2009)." It therefore appears that the applicant herself perceives the actual incidents or events of discrimination as ending with her secondment on October 13, 2009.

16During the applicant's secondment to CSS and the year preceding the filing of the Application, the applicant describes only one contact with ALOC other than the conversation with Mr. Hedley described above. The applicant refers to an email exchange with the current president of ALOC, Mr. Wren. That exchange consists of an email to Mr. Wren from the applicant dated October 8, 2010, an email replying from Mr. Wren on October 12, 2010, and then an email back to Mr. Wren from the applicant on October 14, 2010. There are no other incidents described by the applicant in that year long period of time which involve ALOC, other than the January 25, 2010 conversation with Mr. Hedley discussed above.

17The Application indicates that the last incident of discrimination is October 14, 2010, probably in reference to the email the applicant sent on that day in response to Mr. Wren, as there is no other incident that occurred on that date. The applicant's own email cannot be characterized as an incident of discrimination against herself. However, the email from Mr. Wren confirms that, within one year of the filing of the Application, ALOC communicated with the applicant's employer and the grievance was outstanding. While I am not prepared to attribute that particular "ongoing conduct" to counsel for SGM, it is not plain and obvious on the face of the Application at this preliminary stage that the allegations of discrimination against ALOC with respect to their communications with the employer and with respect to their reluctance to proceed with the grievance are out of time.

Summary

18The Application against Mr. Hedley and SGM are dismissed given that there is nothing in the Application or the submissions responding to the NOID to establish that the alleged discriminatory treatment of the applicant by these respondents occurred within one year of the filing of the Application, and the applicant failed to demonstrate good faith for delay. The only arguably ongoing discrimination is ALOC's ongoing communications with the employer and its continued delay in proceeding with the applicant's grievance for the one-day suspension in March 2009. Any other allegations against ALOC are with respect to the applicant's contact with lawyers at SGM or Mr. Hedley, and that part of the Application against ALOC is therefore dismissed as against ALOC for the same reasons that the allegations against SGM and Mr. Hedley are dismissed, and those parties removed as respondents.

19The parties should note that this Interim Decision to continue to deal with the Application is not a final decision regarding the Tribunal's jurisdiction in respect to the Application (Rule 13.5).

20I am not seized of this matter.