HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda Labao
Applicant
-and-
Toronto Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Labao v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Linda Labao, Applicant
Erin Hallock, Counsel
Toronto Police Services Board, Respondent
Kerri Kitchura, Counsel
1This Application was filed on June 29, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging discrimination with respect to employment on the basis of disability, sex, sexual orientation and marital status. The applicant’s narrative makes allegations regarding events from July 17, 2008 to June 16, 2011.
2The respondent filed a Response on September 28, 2011. On April 11, 2012, the respondent filed a request for order seeking to dismiss parts of the Application for delay. The respondent submits that the allegations prior to June 2010 are untimely and do not form part of a series of incidents.
3On April 25, 2012, the applicant filed submissions opposing the respondent’s request to dismiss. The applicant submits that all of the allegations in the Application are part of a series of incidents.
Summary of Allegations
4The applicant alleges discrimination as a result of a work injury and a failure to accommodate her in the workplace. The applicant also alleges differential treatment based on her sex, sexual orientation and marital status as a woman in a same-sex marriage. The applicant and her spouse both work as Court Officers for the respondent organization.
5The applicant suffered a workplace injury on July 17, 2008. The applicant alleges that, although regular practice is for respondent management to attend the hospital with an injured worker, no supervisor attended the hospital with her. The applicant alleges that when she was injured her supervisor advised her spouse to take her to the hospital. The applicant alleges that the respondent did not promptly return her to work despite medical clearance. The applicant alleges that upon her return to work she experienced difficulties receiving payment of her salary and administrative problems with respect to processing her workers compensation. The applicant was again intermittently absent from work due to her disability.
6The applicant alleges that she and her same-sex partner were married in January 2009. The applicant alleges that their marriage was viewed with less respect within the workplace than a heterosexual marriage.
7The applicant underwent surgery in April 2009. The applicant alleges that after this surgery a year and a half passed without any contact from the respondent, even though the organization’s regular practise is to maintain contact.
8The applicant alleges that when she returned to work in June 2010 she experienced problems with respect to receiving appropriate and meaningful modified duties and further alleges mistreatment with respect to receiving support for attending appointments.
9The applicant alleges that in October 2010 the respondent informed her that either she or her spouse had to be transferred to a different work location and that they would no longer be provided accommodating shifts. The applicant alleges that in November 2010 she informed the respondent that the failure to provide her and her spouse with accommodating shifts had a negative impact on her health with respect to medications and side effects.
10The applicant alleges that in June 2011, the respondent cleaned out her locker and posed questions about her to her spouse without first consulting her.
Analysis & Decision
11Section 34(1) of the Code provides:
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.
34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.
12In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or the last incident in a series of incidents of alleged discrimination. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.
13When assessing whether the allegations relate to a series of incidents, within the meaning of section 34(1)(b), the Tribunal considers the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus: AlSaigh v. University of Ottawa, 2012 HRTO 2 at para 8 and cases cited therein.
14The Tribunal has defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457. A “series of incidents” may be considered to exist where there is a common theme, similar parties and/or circumstances.
15The Tribunal has found that a gap of more than one year between incidents in a series would in most cases interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code may not be considered to form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433.
16The allegations from June 2010 onwards (as summarized in above paragraphs 8-10) are timely and do not form the basis of the respondent’s request to dismiss. The issue is whether the events alleged prior to June 2010 (as summarized in above paragraphs 5-7) are part of a “series of incidents” that come within the purview of section 34(1)(b) of the Code. The applicant contends that the allegations since her injury in July 2008 until June 2010 and onwards are a “series of incidents” and, therefore, within the timelines stipulated in section 34 of the Code.
17While the events alleged from July 2008 to June 2010 occurred more than a year prior to the filing of the Application, I find that these circumstances do constitute a “series of incidents” related to the alleged discriminatory events of 2010-2011 that are clearly within the Code’s timeline.
18The allegations of differential treatment and failure to accommodate following the applicant’s injury in July 2008 appear to be connected, and of a similar nature, to the alleged unfair treatment and failure to accommodate upon the applicant’s return to work in June 2010, the latter being within the Code’s limitation period. The parties appear to agree that from the time of her July 2008 injury to June 2010 there were various attempts to reintegrate the applicant back to work and the parties’ interactions (or lack thereof) during this time form the basis of the applicant’s concerns. As such, the out-of-time events (July 2008 to June 2010) appear to have a nexus to the timely events (June 2010 and onwards).
19While there is a lapse of time between April 2009 and June 2010 in the Application narrative, that lapse or, in other words, the break or void in contact between the parties, is the precise differential treatment that the applicant’s claims as the discriminatory experience. It is the alleged lack of communication, which is ostensibly inconsistent with the respondent’s practices, following the applicant’s surgery and same-sex marriage that applicant complains constitutes discrimination because of her disability, sex, sexual orientation and marital status. The alleged events of 2008 and 2009, from the applicant’s perspective, suggest a mounting level of discriminatory isolation and a growing pattern of unfair decisions because of her disability and same-sex relationship.
20It is noteworthy that while that the applicant claims that the respondent failed to contact her after her surgery, the respondent alleges that there was continuous contact and communication with the applicant throughout 2008-2010. Given that the exact length of time and type of contact giving rise to the temporal gap is the very allegation in dispute between the parties, I find the events in question do form a series of incidents for the purposes of section 34(1)(b) of the Code. As such, I accept that, notwithstanding the contested temporal gap, the allegations of disadvantageous treatment appear to be a series of incidents on-going from July 2008 until June 2010.
21In sum, I find the alleged incidents from July 2008 to June 2010 are sufficiently proximate in time, similar in nature and involving many of the same individuals and invoking intersecting grounds to be considered a series of incidents for the purposes of section 34 of the Code. Because I have found that the applicant has established a series of incidents within the purview of section 34(1)(b), I do not need to assess “good faith and no substantial prejudice” for the purposes of section 34(2).
Conclusion
22Accordingly, the respondent’s request to strike parts of the Application because of delay is dismissed.
Dated at Toronto, this 7^th^ day of August, 2012.
“Signed by”
Ena Chadha
Vice-chair