Annesley v. City of Mississauga, 2012 HRTO 1986

Human Rights Tribunal of Ontario

Between: Lee Ann Annesley, Applicant -and- City of Mississauga, Respondent

Interim Decision

Adjudicator: Judith Keene Date: October 19, 2012 Citation: 2012 HRTO 1986 Indexed as: Annesley v. City of Mississauga

Written Submissions

Lee Ann Annesley, Applicant M. Steven Rastin, Counsel

Introduction

1This is an Interim Decision in respect of 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 with respect to employment because of disability. The Application also alleges reprisal.

2The applicant filed this Application on July 4, 2012. On August 24, 2012, the Tribunal issued a Notice of Intent to Dismiss, acknowledging that the applicant had indicated that a final incident had occurred on July 2, 2011, but indicating that “a review of your Application indicates that it is either not clear what incident of discrimination is alleged to have occurred on this date or how the incident described as occurring on that date constitutes an incident of discrimination within the meaning of the Code”. The applicant was asked to make written submissions concerning these issues.

3The applicant retained counsel; the Tribunal received notice of this on July 12, 2012. The applicant’s counsel has made submissions in response to the NOID.

Code Jurisdiction

4The applicant’s Application contains a lengthy Schedule that states facts and allegations. It appears that the applicant was unrepresented when she drafted her Application. Most of the allegations do not appear to have a connection to matters covered by the Code.

5Three parts of the Application appear to have a connection to Code issues. The first two are an allegation that, when the applicant returned to work after treatment for cancer, her supervisor “came down on” her and bullied her “about not getting any help from anyone”, and an allegation that, when the applicant returned to work after an apparent bereavement leave occasioned by the death of her father, her supervisor “was bitter” about the leave.

6The third area of possible connection with the Code in the Application is an allegation that the applicant’s supervisor, on June 24, 2011, cancelled one week of the applicant’s previously-approved two-week vacation. Allegedly, the supervisor withdrew a previously-approved arrangement that the applicant’s now one-week absence would be “covered” by another employee, and increased the applicant’s workload in a way that made the applicant feel pressured to cancel her vacation, which she apparently did. It appears that the applicant asserts that this was a reprisal for the purposes of section 8 of the Code, by her supervisor.

7The applicant’s submissions on the NOID, filed with the Tribunal on September 19, 2012, has provided some clarification concerning the alleged facts. Counsel for the applicant submits that the applicant alleges discrimination on the basis of both sex and perceived disability. In respect of the claim of sex discrimination, which was not made in the original Application, the applicant asserts through her counsel that she has been subjected to adverse treatment in the workplace “because she was considered attractive by some men in the office”. In respect of the claim of discrimination on the basis of disability, the letter asserts that the applicant’s supervisor was “not supportive of her return to work following successful cancer treatment…in October 2010”. The letter also states that the bereavement leave occasioned by the death of the applicant’s father took place in January, 2011, and that the applicant was berated by her supervisor, with reference to her previous sick leave, when she returned to work.

8The applicant has not filed a Request for an Order During Proceedings to amend the Application to add grounds of discrimination other than disability.

The Time Issue

9Section 34 of the Code provides:

(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.

10An Application will only be dismissed at a preliminary stage, before it is served on the respondents, if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Brooks v. North York General Hospital, 2010 HRTO 453; Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

11There is no question that the allegations related to the applicant's leave of absence for cancer treatment and subsequent return to work relate to a period of time that is more than one year prior to the filing of the Application. The same is true of the claim in respect of the applicant's absence from work related to the death of her father, and of the allegation concerning her vacation, which apparently occurred approximately twenty days prior to the relevant one-year period.

12The letter from the applicant’s counsel indicates that part of the delay at issue in respect of the Application stems from the fact that the applicant retained a paralegal, but that this individual failed to carry out the applicant’s instructions. The letter also refers, without giving specifications, to the applicant's “personal challenges related to her disability”.

13At this point, the information that would be required in respect of a request under s.34 (2) to have the Tribunal deal with the Application has not been fully particularized by counsel for the applicant, but enough detail has been given that it is not plain and obvious that an argument under s.34 (2) would be unsuccessful.

14The Tribunal shall deliver the Application, the letter of September 18, 2012 from counsel for the applicant and a copy of this Interim Decision on the respondents.

15This is not a final decision with respect to the issue of whether any part of the Application is barred by section 34 of the Code. If the respondent takes the position that the Tribunal should not deal with whether the alleged incidents dated prior to July 4, 2011 constitute breaches of the Code, it may apply to the Tribunal for an Order to that effect. In that case, the applicant will be required to provide submissions relevant to s. 34 (2).

ORDER

16The Tribunal shall deliver the Application, the applicant’s response to the NOID and a copy of this Interim Decision to the respondents.

17I am not seized of this matter.