Audrey Chen v. Toronto Police Services Board, 2012 HRTO 1889

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Audrey Chen Applicant

-and-

Toronto Police Services Board Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: October 4, 2012 Citation: 2012 HRTO 1889 Indexed as: Chen v. Toronto Police Services Board

APPEARANCES

Audrey Chen, Applicant William Gale, Counsel

Toronto Police Services Board, Respondent Sharmila Clark, 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").

2The respondent filed a Request for Order During Proceedings ("Request") together with submissions seeking an Order dismissing the Application under section 34 (1) of the Code. The applicant filed a Response to a Request for an Order ("Response"), together with submissions, arguing that the Application is timely and should be heard by the Tribunal.

3By Interim Decision dated May 31, 2012, the Tribunal directed that a half-day in-person hearing be held with respect to the timeliness issue. It directed that if any of the parties intended to call oral evidence, witness statements had to be provided to the other party and filed with the Tribunal no later than 14 days prior to the date of the hearing. It also directed that if any party wished to file additional written submissions, legal authorities or documentary evidence, those materials had to be provided to the other party and filed with the Tribunal no later than 14 days prior to the date of the hearing.

4Having now heard from the parties, I have concluded that the Application must be dismissed as untimely. These are my reasons.

BACKGROUND

5The applicant filed an Application with the Tribunal on November 28, 2011, alleging discrimination on the basis of race, ethnic origin and sex dating back to 1980 when she was sworn in as a police officer. She claims that throughout her career she was harassed, demeaned and marginalized by her peers as well as her superiors. According to the applicant her workplace was poisoned and this caused her considerable stress and anxiety and contributed to her decision to file a grievance on March 26, 2007, through the Toronto Police Association ("TPA") to address her mistreatment.

6In accordance with the grievance procedure, a Step 2 meeting was held on August 21, 2007. A Step 2 response was sent by the respondent to the TPA on September 19, 2007, denying the grievance. On September 27, 2007, the parties referred the matter to conciliation. On November 29, 2007, a conciliation meeting was held but the conciliation was not successful. On February 7, 2008, the parties referred the matter to arbitration and a hearing date was set for September 16, 2009.

7According to the applicant, her workplace environment became so toxic that she had no choice but to take early retirement at a reduced pension. The applicant retired from her employment with the respondent on October 14, 2008.

8On the day of the September 16, 2009, hearing, which was attended by the applicant, the parties agreed that the date would be spent in mediation. The parties continued settlement discussions beyond the date of the hearing and on November 5, 2010, the TPA presented to the applicant the respondent's final offer arising out of the mediation. The settlement proposal was rejected by the applicant and on November 30, 2010, the TPA advised the applicant that it would not continue pursuing her grievance. On November 28, 2011 the applicant filed her Application with the Tribunal.

ANALYSIS

9Sections 34 (1) and (2) of the Code provide that an applicant may not apply to the Tribunal more than a year after the incident or the last incident in a series of incidents to which the Application relates unless the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice would result to anyone affected by the delay.

Timeliness of the Application

10The first issue is whether the Application was filed within a year of the last in a series of "incident[s] to which the Application relates" within the meaning of s. 34(1) of the Code.

11The applicant identifies November 30, 2010, the day she received correspondence from TPA that it would no longer pursue the grievance, as the last incident to which the Application relates. Given that her Application was filed with the Tribunal on November 28, 2011, she argues that her Application is therefore timely.

12The respondent challenges the notion that the TPA's notification to the applicant on November 30, 2010, that it would no longer pursue the grievance was an "incident to which the Application relates". It argues that steps taken during the grievance procedure are not incidents to which the Application relates. It follows that informing the applicant that the grievance would no longer be pursued by the TPA cannot be an incident to which the Application relates.

13I reject the applicant's submissions. There was no new "incident to which the Application relates" on November 30, 2010. Rather, on that date, the applicant was informed that the TPA would no longer pursue the grievance; information which effectively ended the applicant's grievance. I am unable to find that the TPA's decision not to pursue the grievance is a continuing discriminatory act by the respondent as against the applicant.

14Moreover, this Tribunal has found that steps during the grievance procedure are not incidents to which an application relates: Mu v. Cargill Foods, 2011 HRTO 846. It follows therefore that merely informing the applicant that no further steps would be taken in the grievance process cannot be an incident to which the Application relates. As noted in Mu, cited above, at para. 25:

If the applicant's proposed interpretation of s. 34(1) were accepted, the timeliness of an application would not depend on when it was filed in relation to alleged Code infringements, but when it was filed in relation to steps in parallel legal proceedings. Such an interpretation would defeat the purpose of s. 34(1) and is therefore to be rejected.

Good Faith

15I find that the last incident of discrimination occurred on October 14, 2008; the date on which the applicant was allegedly forced to retire. This date is approximately three years prior to the filing of the Application with the Tribunal.

16In order to satisfy the Tribunal that this delay in filing the Application was incurred in good faith in accordance with s.34(2) of the Code, an applicant must provide the Tribunal with a reasonable explanation why he or she failed to pursue his or her rights under the Code in a timely manner.

17Having carefully considered the matter, I am not satisfied that the applicant's explanation for the delay in filing the Application establishes that the delay was incurred in good faith.

18In her Response, the applicant did not provide any explanation for her delay in filing her Application. In the Response, the applicant submits that the respondent would not be prejudiced if the Application were to proceed. However, assuming without finding, that there would be no prejudice, this alone does not meet the test. For the Application to proceed at this point, the applicant must meet a two-part conjunctive test – "good faith" and "no substantial prejudice". The absence of prejudice does not on its own meet the test.

19The applicant submits:

The Human Rights Tribunal is the best and most appropriate mechanism to deal with the complaints of the Applicant and, thus, having established the human rights complaints in her initial grievance in a timely fashion, the Human Rights Tribunal is in a position to continue the process which had already been commenced by the Applicant in a timely fashion.

This argument, however, does not address or explain why the applicant failed to pursue her rights under the Code with the Tribunal in a timely manner.

20The applicant testified that the main reason for the delay in filing the Application was that she believed that she needed to exhaust her grievance before she could commence a human rights complaint. This is not a reasonable explanation for the delay.

21There was no legal basis that would have prevented the applicant from filing a timely application under the Code while she pursued her grievance. This Tribunal has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one's rights under the Code constitutes a good faith reason for delay in filing an Application. See Mu, cited above; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 23; Persaud v. Toronto Community Housing Corporation, 2010 HRTO 1315 at para. 34; Kumar v. Unilever Canada, 2010 HRTO 1113 at para.'s13-14; Cartier v. Securitas Canada, 2010 HRTO 546 at para.'s 14-15; Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578 at para. 9; Hassell v. Parkdale United Church – Ottawa, 2010 HRTO 991 at para. 40.

22On the morning of the hearing, the applicant filed the Tribunal's decision in Humphries v. General Motors of Canada Ltd., 2010 HRTO 177. This was a Transition Application under s.53 of the Code. The underlying complaint was filed with the Ontario Human Rights Commission ("OHRC") in February 2006 and then filed with the Tribunal in June 2009. The complainant filed her complaint with the OHRC only after the grievance process in which she was involved was completed, which was after the expiration of the limitation period for filing her human rights complaint. The complainant indicated that she waited to file her complaint with the OHRC until after the grievance process was completed because the Commission told her to do so. On the issue of "good faith" explanation for the delay in filing an Application in Humphries, cited above, the Tribunal ruled at para. 11:

I accept that the applicant was advised by the Commission to wait until the grievance process was finished before filing a complaint, which advice is consistent with the general practice of the Commission at that time. Accordingly, I find that the delay between November 2004 and February 2006 in respect of any positions from November 2004 to July 2005 was incurred in good faith as she had an outstanding grievance during that time.

23In her witness statement, the applicant indicates that "in September 2009, the [TPA] made me aware that they would not be proceeding with a human rights complaint on my behalf." The applicant testified that, on receiving this advice, she then went online to see how she should proceed with her human rights complaints and ended up at the OHRC's web page. According to the applicant, the OHRC web page advised not to file a complaint with the OHRC until any grievance process was finished. Consequently, only once she received the TPA's November 30, 2010, letter did she feel free to file her Application; a year, less two days, later.

24I am troubled by this. The applicant testified that she went to the OHRC's web page after being informed by the TPA in September 2009 that the TPA would not be pursuing her human rights complaints. There is no documentary evidence supporting the allegation that the TPA advised her that it would not be pursuing her human rights complaints. In fact, to the contrary, the grievance is quite clear. The TPA and the applicant were seeking, among other remedies: "A declaration that the Ontario Human Rights Code has been violated" and "An order that the Grievor be paid damages for breach of her statutory rights under the Human Rights Code…". Under the circumstances, I am not satisfied that the TPA told the applicant that the TPA would not be pursuing her human rights complaints.

25Moreover, I must question the applicability of Humphries, cited above, to the case at hand. In Humphries, the "good faith" analysis was related to the OHRC's normal practice at the time the complaint was filed with the OHRC in 2006, which was to wait until the grievance process was finished before accepting a complaint. In addition, the "good faith" analysis was raised in the context of a Transitional Application originally filed in 2006 with the OHRC and not an application, such as this one, filed directly with this Tribunal in 2011. Both of these factors are not present in this case. The OHRC's practice is not and never has been the practice of this Tribunal with respect to applications filed with it. See paragraph 21 above.

26The applicant's witness statement indicates that the TPA advised her in September 2009 that it would not be proceeding with her human rights complaint. The applicant testified that this prompted the applicant to visit the OHRC's web page where she allegedly learned that she had to wait until the grievance process was finished before she could file a complaint with OHRC. I find that this is not a plausible explanation. Following significant amendments to the Code, the OHRC stopped taking new complaints after June 30, 2008. Following that date, complaints had to be made directly to this Tribunal. In the absence of any evidence, I question whether in September 2009, or any time thereafter, the OHRC's web page would be instructing complainants to wait until the grievance process was complete before filing a complaint with the OHRC. However, given my finding that Humphries, cited above, is distinguishable, the absence of evidence on this point is not determinative of the issue of good faith.

27In 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; see Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. In her Response, the applicant indicated:

However, it became clear to the Applicant that she was not going to receive the type of resolution to her human rights complaints through the grievance procedure that would properly deal with her long-standing issues, and, thus, she turned to the Human Rights Tribunal to exercise its jurisdiction in this area.

It would appear that, having not obtained the type of resolution she wanted through the grievance process, she now turns to this Tribunal in an effort to get the resolution she wants. I do not find this to be a reasonable explanation for the delay. In the circumstances I am not satisfied that the delay in filing the Application was incurred in good faith.

28The applicant has not provided a reasonable explanation for the failure to file a timely Application under the Code. As I am not satisfied that the delay in filing the Application was incurred in good faith, it is not necessary for me to determine whether allowing the Application to proceed would cause substantial prejudice to anyone affected by the delay.

29The Application is dismissed.