Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kai Edwards

Applicant

-and-

Heydary Hamilton Professional Corporation

Respondent

INTERIM DECISION

Adjudicator: David Muir

Decision: October 1, 2012

Citation: 2012 HRTO 1864

Indexed as: Edwards v. Heydary Hamilton Professional Corporation

APPEARANCES

Kai Edwards, Applicant

Alison A. Thornton, Counsel

Heydary Hamilton Professional Corporation, Respondent

Raj Anand, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex, family status and reprisal. The Application contains two general allegations. First that the respondent failed to appropriately accommodate pregnancy related illness in July 2009. Second the applicant states that she was terminated when she asserted her rights to take a pregnancy leave in May 2010.

2In 2011 HRTO 421 the Tribunal deferred this Application pending the resolution of the review of an Employment Standards Officer’s (ESO) decision under the Employment Standards Act, S.O. 2000, c. 41 (ESA) by the Ontario Labour Relations Board (OLRB) because the Tribunal concluded that the issues raised in that proceeding were “virtually identical” to the issues in this Application. Following the release of the OLRB decision dismissing the application before filed bythe respondent here, the Tribunal in 2011 HRTO 1954 reactivated the Application at the request of the applicant and with the consent of the respondent.

3A hearing in this case was scheduled to begin on June 29, 2012. Late in the day on May 18, 2012 new counsel for the respondent filed a Request for Order During Proceeding (Request) seeking the dismissal of the Application pursuant to section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with by the OLRB proceeding. The respondent also stated that any allegation of the applicant that was not dealt with by the OLRB is out of time and therefore outside of the Tribunal’s jurisdiction. The applicant filed a Response to the Request. The applicant also objects to the issue being raised by the respondent at this stage of the proceeding.

4The background facts are found in the decision of the OLRB as follows:

[The applicant] discovered in February 2009 that she was pregnant. In early July 2009 she advised (the respondent) of her pregnancy and intention to take a pregnancy leave. That leave commenced on September 3, 2009. Her daughter was born on October 25, 2009.

5The applicant attended her workplace on two occasions during her leave. The first appears to have been inconsequential. On the second occasions a dispute arose:

The second time [the applicant] visited [the respondent] during her leave occurred in mid-May 2010. At that point she met with [Ms. Z]. Ms. Z's title was Senior Manager Administration, and she had responsibility for human resources at [the respondent]. Ms. Z did not testify in this proceeding, so [the applicant’s] account of their conversation is uncontradicted. According to Ms. Edwards, Ms. Z was concerned to know if [the applicant] intended to return to work after her leave, as that decision would affect staffing in the department. [The applicant] testified that she assured Ms. Z that she was returning. According to [the applicant], the only other matter they discussed was her request for a pay raise, a topic she said had been broached by her prior to the commencement of her leave and shortly after she received a positive formal performance evaluation in February 2009. As [Ms. Z] had the first time the matter was raised, she indicated to [the applicant] that she would need to speak to Mr. H about this. [The applicant] testified that Ms. Z did not raise with her during this meeting any issues about her performance nor did she impose any preconditions on her return to work.

In the week following the meeting described in the preceding paragraph, [the applicant] received an e-mail from Ms. Z. It was sent on May 21, 2010 and reads as follows:

Kai;

As discussed in our meeting this week your maternity leave ends on September 3rd, 2010. I also notified you that we would need to know whether you are returning to work as we would be hiring a third legal assistant for the department and that if you are not coming back, we would need to start the selection and interview process a few months in advance. You stated that your return would be conditional on receiving a pay raise. As you were informed on several occasions before you left for your maternity leave, we were not able to provide you with a raise due to serious performance issues.

The raise was and is conditional upon major improvement in those areas and a satisfactory performance evaluation which you failed to achieve and receive. Your [sic] were notified of all the issues in person and via email on a number of occasions during a period of several months but we not only did not see any improvement in those areas but a marked decline.

Those issues need to be addressed before you return to work in particular since the department has doubled in size since you were here and the quality of work and the dedication of our current team of support staff is exceptional. We would not want any individual jeopardizing this by poor performance or insubordination.

This is also to inform you that you have until June 14th, 2010 to confirm your return and a non-reply would be indication of your resignation.

Ms. Edwards testified that she was shocked at the content of the e-mail, which did not reflect what they had discussed in the meeting. The inaccuracies she identified were the references to performance issues, which she says were not discussed, and the characterization of her request for a raise as a "condition" of her returning to work. As noted earlier, she acknowledged requesting raise, but did not make her return conditional upon it being granted. In addition to the contents of the email, [the applicant] was also troubled by the deadline imposed in the last sentence, and testified that she called the “Labour Board” for information, and was advised that her job must be kept open for a year…

The information [the applicant] received prompted her to send the following email to Ms. Z on May 27, 2010:

Lillian,

Thanks for your email.

My maternity leave ends September 4, 2010 and I will return after that date.

P.S. You are to have my position available to me until that date by law unless I specify otherwise which I have not.

Kai

On June 7, 2010, Ms. Z replied to [the applicant] by e-mail:

Dear [applicant]:

Your email clearly demonstrates your unwillingness to address the performance issues as stated below and in previous meetings before the start of your maternity leave. Your email is also an indication of insubordination and in light of past accommodations made to you by the firm in regards to the above, your conduct is unacceptable. Your employment with [the respondent] is therefore terminated effective immediately.

Please see attached letter of Termination.

Best regards,

6Shortly after her dismissal from employment the applicant filed a claim under the ESA which was investigated and sustained by an ESO. The respondent appealed the ESO’s determination to the OLRB where a hearing de novo was held. The OLRB dismissed the appeal and the applicant subsequently sought and was granted the reactivation of this Application.

THE APPLICANT’S PRELIMINARY OBJECTION

7The applicant argues that the Tribunal should not entertain the respondent’s Request. The applicant states that it should not be entertained because the respondent expressly consented to the reactivation of the Application at a time that all of the material facts upon which it now relies were known. In the applicant’s view it is an abuse of process for the respondent to raise the issue now, some seven months after giving its express consent to the reactivation of the Application. The applicant also argues that the cases relied upon by the respondent are distinguishable and that the respondent’s argument is not particularly meritorious.

8As I indicated at the hearing I do not agree with the applicant that the timing or manner in which the respondent has raised the section 45.1 constitutes an abuse of process. As I further indicated that while the timing was not ideal, the fact is that the Tribunal may have raised the issue of its own motion. This is so because contrary to the applicant’s view the issue raised by the respondent is an important one that appeared to have some merit. Although raised late the Request on its face had the potential to significantly affect the scope of the issues to be dealt with in the hearing with the concomitant impact on the private and public resources required to devote to the final resolution of the disputes between the parties. I also observe, as noted by counsel for the respondent, that whether or not all or part of an Application is timely is a matter of jurisdiction which must be addressed. In all of the circumstances it is in my view entirely appropriate that these matters be raised and dealt with prior to the commencement of the hearing.

THE SECTION 45.1 ISSUES

9The applicant’s position is that having been successful in advancing her ESA claim of reprisal for asserting her rights to a leave under the ESA and not to be dismissed from her employment because she has taken a leave, she is entitled to come to the Tribunal and seek further remedies under the Code based on the OLRB’s findings as supplemented by further evidence to deal with issues that the OLRB could not have because of the differences in the remedial authority of the two Tribunals. The applicant states that to interpret section 45.1 in the manner suggested by the respondent would require an applicant to make a choice about which statutory scheme she would access.

10Although not critical to my analysis of this issue I would observe at this stage that the latter two remedial orders (see below) the applicant seeks may not be available under the Code. The remedy granting provisions of the Code were amended with Bill 107, Human Rights Code Amendment Act, 2006, to remove the possibility of an Order of monetary damages for mental anguish where the conduct complained of was found to be wilful or reckless although I recognize that the wilful or reckless nature of conduct found to be in violation of the Code might affect the quantum of damages for non-pecuniary losses that might be awarded. I also note that remedial Orders are just that, remedial and not punitive or for the purpose of admonishing a respondent or serving as a general deterrent to others in the community.

11The applicant states that what the applicant is seeking to do here does not raise the concerns addressed by the Supreme Court in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, 2011 S.C.C. 52 (Figliola). Rather the applicant states that the concern in that case as with many others considering the application of section 45.1 is with unsuccessful claimants circumventing the proper appeal process under one statutory scheme with a collateral attack on the decision in another forum. The applicant states that she is not engaging in a collateral attack on the OLRB decision. She accepts that decision and intends to rely upon it to found claims for further and other relief from the Tribunal. The applicant acknowledges that she is not entitled to double recovery however she claims that she is entitled to additional relief under the Code based in part on determinations made by the OLRB and further evidence she intends to call.

12The applicant states that the following issues have not been addressed by the ESA proceeding:

a. Whether in light of its prior acts of singling out the applicant for prior discipline and in refusing to accommodate the applicant’s pregnancy related illness the respondent discriminated against the applicant on the basis of sex and family status, which culminated in her dismissal from employment;

b. Whether the respondent’s actions were of a wilful and intentional nature such as might warrant the imposition of damages for mental anguish; and

c. Whether the nature of the respondent’s actions merit the imposition of public interest remedies to admonish the respondent for its conduct and to prevent future discrimination of this nature by this respondent or similarly situated persons.

13The applicant also states that she would be seeking the following further relief from the Tribunal:

d. Further damages pursuant to section 45.2(1) of the Code;

e. Damages for mental anguish because the respondents’ actions were wilfull and reckless; and

f. "public remedies" to admonish the respondent for its conduct and to prevent future discrimination of this nature by the respondent or similarly situated persons.

14The applicant relies on two decisions of the Tribunal which in her view demonstrate that that the powers of the Tribunal under the Code are not entirely subsumed by the powers of an ESO to award compensation to a female employee fired for taking a pregnancy or parental leave. See Vonella v. Blake Jerrett & Company, 2011 HRTO 113 and Bickell v. The Country Grill, 2011 HRTO 1333.

15The applicant submits that the allegations in the Application are essentially one continuing course of discriminatory conduct beginning with an alleged failure to accommodate in July 2009 and culminating in the decision to terminate her employment in June 2010. The applicant states that it would be inappropriate to divide up what is essentially one course of illegal conduct to insulate the respondent from liability for its misconduct.

16The applicant also argues that in exercising the discretion under section 45.1 I should consider the fact that the respondent is not coming before the Tribunal with clean hands. The applicant argues that based on the willsays provided, the respondent appears intent on re-litigating the issues already determined by the OLRB.

17The respondent argues that the pregnancy and parental leave provisions of the ESA are in the nature of anti-discrimination provisions largely similar if not identical to the protections in the Code. The respondent submits that the fact that the remedies available in the two proceedings are not identical is irrelevant and points to those decisions of the Tribunal where the discretion in section 45.1 has been exercised where no compensation was awarded in the other forum. The respondent also submits that the analysis in Figliola does apply with equal force where the claimant has been successful in the other proceeding. In response to the applicant’s submission that the section should not be interpreted as imposing an obligation that a claimant choose the statutory regime they will engage to vindicate their rights, the respondent states that this is precisely what it does.

18Section 45. 1 authorizes the Tribunal to dismiss an Application in whole or in part where in its opinion the substance of the Application has been appropriately dealt with in another proceeding. It is a discretionary power intended to avoid the re-litigation of issues and disputes that have previously been resolved.

19The Tribunal has held that the application of the section requires a two part analysis. First whether the issues in the Application were raised in another “proceeding”. If the answer to the first question is yes, then the question becomes whether the substance of the Application was appropriately dealt with there.

20The Tribunal has concluded on numerous occasions that a proceeding under the ESA both at the ESO stage or a review hearing at the OLRB is a “proceeding within the meaning of section 45.1. See Little v. TeleTech Canada, 2009 HRTO 1763, Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672 and James v. Kuehne & Nagel, 2011 HRTO 2317. Neither party took issue with the fact that the OLRB hearing and decision was a proceeding within the meaning of the section. There is also no dispute that the issues raised in the ESA/OLRB proceeding are substantially the same as those raised in the Application, with the exception of the alleged failure to accommodate about which more will be said below. Indeed as indicated the applicant intends to rely on the findings made by the OLRB in advancing her further remedial claims.

21The real question in this case is whether all or part of the substance of this Application was appropriately dealt with in the ESA/OLRB proceeding and if it was, should I exercise the discretion granted in section 45.1 and dismiss all or part of it. In my view much of the substance of the Application was dealt with in the other proceeding. I also find that it is appropriate to dismiss that part of the Application which has been dealt with.

22The applicant alleges that she was subject to discriminatory treatment in being singled out for unfounded "discipline" and denied an adjustment in her hours of work to accommodate a pregnancy-related illness, culminating in her illegal dismissal. To the extent that the applicant alleges that these actions constitute a single discriminatory event culminating in her dismissal, which appears to be her position, I find that this aspect of the Application has been appropriately dealt with in the OLRB proceeding. I also find that the allegation that her dismissal from employment was discriminatory, and/or a reprisal for her asserting her rights to a pregnancy leave, to the extent that it might be framed as a stand-alone act of discrimination, has been appropriately dealt with. Finally I find that contrary to the applicant’s apparent position, the allegation that the respondent failed to accommodate the applicant when asked to do so in July 2009 can be seen as a stand-alone violation of the Code and it was not dealt with in the ESA/OLRB proceeding.

23While I agree with the applicant that this case is not four square with the circumstance in Figliola, above, in that she is not seeking to do an end run around the appeal mechanisms available to an ESA claimant, that is not a complete answer to the issue raised by the respondent.

24In my view section 45.1 on its face does not suggest that it is only applicable to situations where the unsuccessful party comes to the Tribunal seeking a more favourable result. In my view it is applicable to any circumstance where, in the opinion of the Tribunal, the substance of the Application has been appropriately dealt with. The applicant pointed to no authority for her view that it should only be applied where the Application amounts to a collateral attacks on the decision from the other proceeding.

25In my view the section is broadly worded to be responsive to the myriad of circumstances where human rights claims can be adjudicated. It is, as the Supreme Court pointed out in Figliola, intended to prevent re-litigation of issues that have already been determined, not to facilitate duplicative litigation. It is concerned not only with preventing an abuse of the Tribunal’s process but is cast more broadly to enable the Tribunal to respond to the other concerns engaged where matters already determined are included in an Application before the Tribunal. These other concerns include the important public policy goals that there be an end to litigation and that no one should be called upon repeatedly to respond to the same claims. Another important consideration that is often raised in this context is the preservation of private and public resources in resolving workplace disputes. See Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63 at para 38.

26I find that it is appropriate to exercise the discretion granted in s. 45.1 in this case because in my view the protections in the pregnancy and parental leave provisions together with section 74 (Reprisal section) of the ESA are in the nature of anti-discrimination enactments. The language of these provisions is drafted to provide protection to women in the workplace who are, or may become, pregnant and are or may wish to take advantage of the pregnancy parental leave provisions of the ESA. The ESA includes a reverse onus provision unlike the Code. Employment standards officers are given broad remedial powers to employ where a violation of these provisions is found. The heads of damages available are largely similar but not identical to those available under the Code, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress. The ESA also includes the power to reinstate an employee to their employment in appropriate circumstances. The Tribunal has on many occasions taken this view of the scope and purpose of the ESA as it relates to pregnancy and parental leave. See Chen v. Harris Rebar, 2009 HRTO 227; Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458; and Windrem v. JF Moore Lithographers Inc., 2012 HRTO 785.

27The fact that the remedies available under the two statutes are not identical is not determinative. As pointed out by the respondent the Tribunal has applied section 45.1 where no monetary compensation was awarded or even available in the other proceeding. See Campbell v. Toronto District School Board, 2008 HRTO 62. On my reading of the cases whether or not the same remedies are available in the other proceedings is irrelevant to the exercise of the discretion in section 45.1.

28I am also less confident than the applicant that there will be no need to relitigate issues dealt with in the course of the OLRB’s hearing. Because of the different manner in which the issues would be framed in the consecutive proceedings there may well be need to in effect re-hear substantial portions of the parties’ competing narratives in order to arrive at conclusions about, for example, whether or not the conduct of the respondent was willful or reckless.

29The Tribunal has on at least four occasions applied section 45.1 to circumstances where an applicant has been successful, in whole or in part, in another proceeding and has then come to the Tribunal raising similar issues as were previously dealt with. In considering these issues, the Tribunal has not taken a technical formalistic approach in defining the issues dealt with in the other proceeding – the focus is on the substance of the Application, not parsing the allegations or remedies sought or obtained. See Pinder v. Toronto District School Board, 2012 HRTO 1217; Henderson v. Nutech Fire Protection, 2010 HRTO 2153; Hansen v. Workplace Safety and Insurance Board, 2012 HRTO 608; and Shi v. Holcim (Canada), 2012 HRTO 416.

30In Hansen the Tribunal framed the issue as follows at paras. 10 to 13:

Section 45.1 of the Code has been the subject of extensive commentary by this Tribunal. In Campbell v. Toronto District School Board, 2008 HRTO 62, I stated that “[i]n addition to issue estoppel and abuse of process, section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings.” [para. 61] It is clear from the decisions of the Tribunal that it places a high value on the finality of litigation, judicial economy and the recognition that other adjudicative bodies have the responsibility and jurisdiction to interpret and apply the Code: Noble v. York University, 2009 HRTO 1201. In Campbell, I also stated that

the question of whether a matter has been dealt with “in substance” does not turn on technical considerations, nor is it dependent on the kind of criteria applied under legal doctrines such as issue estoppel. Further, a decision about whether a matter has been dealt with “appropriately” does not require this Tribunal to be satisfied that it would have reached the same conclusion as that reached in the other forum. Section 45.1 does not require the Tribunal to act like an appellate court.

Further, the question in determining whether to exercise a discretion under section 45.1 is not whether an applicant received the result and remedy he or she was seeking in the other proceeding, but whether there was a full and fair opportunity to have the human rights claim considered, before an adjudicator who had the jurisdiction to interpret and apply the Code: Noble. In Noble, the Tribunal applied section 45.1 in the context of a grievance arbitration decision which allowed a grievance by the applicant, without having to determine whether the actions of the employer violated the anti-discrimination provision of a collective agreement. The Tribunal rejected the argument that because the arbitrator did not determine whether discrimination occurred, section 45.1 did not apply. [para. 31]

In this case, before the WSIAT, the applicant put forward the argument that the decision of the WSIB amounted to age discrimination under the Code. The applicant also made the argument that section 2.1(1) of the WSIA was unconstitutional or inapplicable. The WSIAT allowed his appeal. It stated that, given the outcome of the appeal, it was unnecessary to address the constitutional and human rights arguments.

Therefore, as a result of the WSIAT decision, the applicant obtained the labour market re-entry program that he was seeking. Nonetheless, he states that he wishes to pursue this Application to the Tribunal to advance his contention that the decision of the WSIB was discriminatory and obtain remedies under the Code. In the Application, the remedies the applicant seeks are monetary compensation for injury to dignity, feelings and self-respect, policy changes and training. The applicant quantifies the monetary compensation with reference to the “amount of money that the Workplace Safety & Insurance Board saved by discriminating” against him.

31Amongst other things the Tribunal considered, in applying section 45.1 to the circumstances before it, was the following at para. 19 and 20:

In reflecting on the issues raised, I also find it useful to refer to the Tribunal’s discussions on “mootness”. The mootness doctrine is concerned with judicial economy, in discouraging litigation over questions which are not “live controversies”: see J.C. v. Canadian Hockey Association, 2011 HRTO 385, 2011 HRTO 385, and the cases cited therein. It may be said that the question which gave rise to the Application is moot, in that the decision which the applicant challenges no longer has any effect on him. At the time the applicant filed this Application, the adjudicator’s decision was still in effect. It was subsequently overturned. Here, the interest in proceeding with the Application is not that the decision still has a practical impact on the benefits the applicant receives under the WSIA, but that he wishes to pursue his claim for human rights remedies.

In all the circumstances, I find that the fact the applicant did not receive the remedies he requests in this Application is not by itself a reason to litigate afresh the validity of the initial denial of the LMR benefit. I am satisfied that such an inquiry would violate the principles of judicial economy and finality of litigation. I am supported in my conclusion by the decisions of the Tribunal in Campbell and Noble, above, as well as other decisions of the Tribunal in this area. My determination is also consistent with the principles expressed by the decision of the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52

32As indicated the applicant relied on two decisions of the Tribunal: Bickell v. The Country Grill, above, and Vonella v. Blake Jarett, 2011 HRTO 113.

33In Vonella the Tribunal concluded that section 45.1 should not apply because the ESA proceeding in that case did not, and could not, deal with allegations of differential treatment prior to a pregnancy leave. The Decision is confined to its fact and the result turns in large part on the fact that there were allegations that could not have been dealt with in the ESA proceeding.

34The applicant also relies on Bickell. As noted by the respondent the decision in Bickell pre-dates Figliola and is authored by the same Vice-chair who wrote Shi, which post-dates Figliola. In Bickell the respondent did not attend the hearing and the Tribunal, in exercising its discretion considered the fact that there was no party asserting that section 45.1 ought to apply in the circumstances.

35I do agree that the application of section 45.1 will be highly case specific and will depend entirely on the issues raised in the other proceeding and of course, the nature of the other adjudication; i.e., is it a proceeding within the meaning of the section. I agree that not every claim under the pregnancy and parental leave provisions of the ESA will necessarily preclude an applicant from proceeding with an Application here alleging discrimination on the basis of pregnancy. The most obvious such circumstance would be where the substance of the Application was an allegation of a failure to accommodate pregnancy related needs. As I have concluded in this case to the extent that the Application includes an allegation of a failure to accommodate the applicant the ESA/OLRB proceeding did not deal with that issue and in many cases would not be able to. I do find however that an allegation that a dismissal from employment was made, in whole or in part, because an applicant sought to take or continue a leave is an issue that can arise under both the Code and the ESA and can be dealt with in an ESA proceeding.

36The applicant argues that section 45.1 should not be interpreted in a way that requires an applicant to make a choice about the forum in which they should advance their claims. In my view that is precisely what section 45.1 does require in some circumstances. Where the substance of a potential human rights application can be raised and dealt with in another proceeding in many instances the applicant is required to make a choice about where to make their claim. There may be advantages and disadvantages to the various proceedings available to a claimant. However where there is concurrent jurisdiction to deal with an issue, section 45.1 as interpreted by the courts and the Tribunal in the cases cited elsewhere in this decision does require that an applicant make a choice. In Paterno v. Salvation Army, 2011 HRTO 2298 the Tribunal answered the applicant’s question as follows at paras. 32 and 22:

The applicant suggests that Figliola supports his view that the applicant has an absolute entitlement to choose the forum in which his human rights issues will be decided. In support of this submission he cites para. 21, which states that both the Board and the Tribunal in that case had concurrent jurisdiction, and para. 96, which is from the minority decision and does not reflect the majority’s views. Figliola does not support the applicant’s position. The Court’s point in para. 21 is that both the Board and Tribunal had the power to deal with the dispute, as is the case here, not that it was the applicant, rather than the respondent, that brought the matter before the Board.

The applicant had a choice. He could have foregone the benefits that he had as an employee under a collective agreement – including just cause protection, the grievance procedure and representation by union counsel – by not pursuing a grievance or arbitration. He then could have proceeded at the Tribunal with his human rights Applications without them being affected by the arbitrator’s determination. Having chosen to take the benefits of the collective agreement and the grievance process, however, an applicant must accept the consequences of that choice for a subsequent human rights proceeding, which is that the issues may be dealt with in the grievance and arbitration process that she or he has commenced. An applicant has a choice about where to proceed, but does not have the option to require an employer to litigate the same issues twice.

37I agree with the analysis in Paterno above and the other cases where the same point has been made. See Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 61. For all of these reasons as set out above the substance of the Application as framed by the applicant have been appropriately dealt with in the ESA proceeding. The Application as it relates to those issues is dismissed.

THE DELAY ISSUE

38I find that the remaining allegation in the Application, that the respondent failed to accommodate the applicant when requested to do so, is not outside of the jurisdiction of the Tribunal notwithstanding the fact it is said to have occurred more than one year prior to the Application being filed.

39Section 34 (1) and (2) of the Code provide 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.

40The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination 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. The provision has been found to be mandatory subject to section 34(2). The 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. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241). The Tribunal has interpreted the words “series of incidents” in section 34(1)(b) as contemplating incidents that are related thematically and in time. The Tribunal has also held in many cases that a significant gap in time between incidents in a putative series will interrupt the series.

41The Tribunal has jurisdiction to entertain an application that is out of time where the applicant is able to establish a good faith explanation and that there would be no substantial prejudice to any party in the event that application were to be processed further. However the Tribunal has held that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith.

42This Application is not out of time. It was filed on October 14, 2010 and relates to two alleged incidents of discrimination occurring in July 2009 followed by the applicant’s termination from employment in June 2010. While I have found that the allegation of a discriminatory termination should be dismissed pursuant to section 45.1 there remains the allegations of a failure to accommodate the applicant’s pregnancy related needs in July 2009 which is in or out of time depending on the treatment of the applicant’s termination in May 2010.

43The respondent submits that the applicant cannot rely upon the termination incident if it is dismissed pursuant to section 45.1. They relied on a Tribunal decision in Chappell v. Securitas Canada Limited, 2012 HRTO 874 in which the Tribunal held that an allegation that the Tribunal had dismissed because it had no reasonable prospect of success “cannot form part of a series of incidents” within the meaning of section 34(1). While I agree with the conclusion it seems to me that there is a distinction to be made between the situation where an allegation has been dismissed for lacking merit and one which has been vindicated but dismissed because it has been previously adjudicated. In my view the reasoning in Chappell does not apply to these circumstances. Accordingly, the question becomes whether or not the two incidents are a series of incidents within the meaning of section 34(1)(b).

44The phrase “series of incidents” in section 34(1)(b) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified. On the other hand the language of the section recognizes that it would not be appropriate that a human rights claimant file an Application at the first instance of perhaps inappropriate treatment. The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame. Are the incidents of an alleged failure to accommodate the applicant’s pregnancy related needs in July 2009 and then a discriminatory termination in May 2010 a series of incidents within the meaning of the section? In my view they are in these circumstances notwithstanding the lengthy temporal gap between them. I find that the fact both allegations relate to the same pregnancy as opposed to a claim or claims of other incidents of gender discrimination for example, is sufficient to meet the subject matter similarity test in these circumstances. I am also satisfied that the temporal gap of 10 to 11 months is not sufficient to interrupt the series in this circumstance particularly considering the fact that the applicant was on a leave with virtually no contact with the workplace from September 3, 2009 to May 2010 when she was terminated.

ORDERS AND DIRECTIONS

45The Tribunal makes the following Orders and Directions:

a. The Application as it relates to the termination of the applicant’s employment is dismissed for the reasons set out above;

b. The allegation that the applicant was not accommodated in her pregnancy related needs in July 2009 may proceed to the next step in the Tribunal process;

c. The parties are directed to advise the Tribunal within 14 days of the date of this Decision whether they are willing to participate in mediation at the Tribunal. If both parties agree to attend mediation, a date will be scheduled;

d. If either or both of the parties decline to participate in mediation a one day hearing will be scheduled to adjudicate the remaining issues in this case

46I am not seized of this case