Jean Dixon v. Ontario (Attorney General), 2011 HRTO 943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean Dixon

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General and the Minister of Government Services

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: May 16, 2011

Citation: 2011 HRTO 943

Indexed as: Dixon v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Jean Dixon, Applicant ) Self-represented

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 with respect to employment on the basis of race, colour, ancestry, sex and reprisal. The applicant is a lawyer employed by the Ministry of the Attorney General (“MAG”).

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. The NOID also indicated that the Application has not identified or explained how the alleged discriminatory events spanning 5 years constitute a series of incidents within the meaning of s.34(1) of the Code so as to allow the Tribunal jurisdiction to deal with those incidents which occurred more than a year prior to the filing of the Application. The Application has not yet been delivered to the respondents.

3The applicant filed written submissions on March 1, 2011, in which she argues that there is no delay given that the discrimination is ongoing. She also argues that October 14, 2010 is the last date of a series of incidents that she alleges constitute discrimination. She states that there is a “connection/nexus between the succession or repetition of discriminatory conduct and harassment arising from events up to and including October 14, 2010, and beyond.” 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 CSS 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 attached to her Application that the allegations relate to alleged harassment and a poisoned environment while she worked at the FRO, prior to her secondment to CSS in October, 2009. In the applicant’s “Overview” of her addendum to the Application, 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.

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).

8The Application does not contain any reference to the applicant having had interactions with the respondents within the year leading to the filing of the Application (October 19, 2009 to October 19, 2010) other than two: one is a reference to conversations and a meeting with Dave Costen, the Portfolio Director for Government and Social Services, and the other is a reference to the applicant’s meeting with the Legal Director and Deputy Director for the MOL on September 30, 2010 to discuss the proposed seconded position there.

9The first arose when Mr. Costen contacted the applicant in September 2010, near the end of her secondment to CSS, to negotiate with her a new secondment at the MOL. The applicant asserts that she experienced discrimination in her meeting with Mr. Costen on September 27, 2010 when he made a belittling comment.

10With respect to her second allegation, she asserts that the MOL management made her a secondment offer on September 30, 2010 that was so inadequate as to constitute discrimination. Her position is that an indefinite secondment that is less than six months was unacceptable and that it indicated “management’s… negative view concerning [her] worth as a Black person.” The Application includes, however, an email from Mr. Costen dated October 7, 2010 which confirms that he could offer a six month, MOL secondment. The applicant does not indicate whether there were further communications with Mr. Costen before she filed the Application on October 19, 2010.

11Without commenting on the merits of the above allegations involving Mr. Costen and MOL management, it is not plain and obvious to me that they do not satisfy the criteria of s.34(1) with respect to timeliness. Consequently, I do not dismiss for delay that part of the Application that alleges discrimination with respect to the communications between the applicant and Mr. Costen in September and October 2010, and the allegations with respect to the applicant’s meeting with MOL management on September 30, 2010.

12All other incidents of alleged discrimination, which are described in detail by the applicant, are in the context of what happened in her relationships with members of FRO staff and management, including the personal respondents, who had no contact with the applicant after she began working at CSS on October 13, 2009. The Application has made no connection between the alleged discrimination at FRO to her communications with Mr. Costen and the Legal Director and Deputy Director of MOL that she alleges were discriminatory as described above. Accordingly, the incidents or series of incidents involving the FRO, Barbara Nawrocki, Donna Holmes and Louise Lloyd are out of time, and I must now determine whether the delay was incurred in good faith.

13The 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 her addendum to the Application, the applicant retained counsel by August 4, 2009 to assist her with negotiations with the employer, and her counsel provided her with advice that included advice about her grievance against FRO for suspending her when she refused to work with a colleague whom the applicant alleges discriminated against her. 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.

14It is clear that the applicant had identified alleged contraventions of the Code with respect to the FRO, Barbara Nawrocki, Donna Holmes and Louise Lloyd well before she stopped working there, and certainly well before one year had passed since she had any contact with them. She offered no reason in response to the NOID to explain her delay in filing her Application, let alone a reason which would constitute good faith. Accordingly, I cannot find good faith to excuse the delay between the filing of the Application and what the applicant argues was discrimination in her dealings with the FRO, Barbara Nawrocki, Donna Holmes and Louise Lloyd. An analysis of whether the delay caused prejudice to these respondents is not appropriate given my finding that the delay was not incurred in good faith. The Application with respect to allegations against these respondents is outside the Tribunal’s jurisdiction and the style of cause has been amended to reflect their removal as respondents.

15The parties should note that this Interim Decision to continue to deal with the Application is not a final decision regarding the Tribunal’s jurisdiction over the Application (Rule 13.5).

16I am not seized of this matter.