Ellerbeck v. Skyline Management Incorporated, 2012 HRTO 2345

Human Rights Tribunal of Ontario

B E T W E E N:

Anita Ellerbeck

Applicant

-and-

Skyline Management Incorporated, Terry Harris, Kelly Nimmert,

Richard Izawa and Bob Waterfield

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: December 13, 2012

Citation: 2012 HRTO 2345

Indexed as: Ellerbeck v. Skyline Management Incorporated

WRITTEN SUBMISSIONS

Anita Ellerbeck, Applicant

Self-represented

Skyline Management Incorporated, Terry Harris, Kelly Nimmert, Richard Izawa and Bob Waterfield, Respondents

Kristin A. Ley, 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, harassment and reprisal with respect to employment because of sex.

2The respondent filed a response and a request to have this Application dismissed for delay because it was filed more than one year after the last incident of alleged discrimination.

DELAY

3Section 34 states, in part:

(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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.”

5The applicant filed an Application with the Tribunal against Skyline Management Inc. and a number of individual respondents alleging sexual harassment, sexual solicitation and reprisal in relation to her employment. The applicant resigned her employment effective on July 28, 2011. She was subsequently advised by her employer that her last official day of work would be July 22, 2011. Her application to the Tribunal was filed August 20, 2012.

6Prior to filing her Application with the Tribunal, the applicant filed applications with the Workplace Safety and Insurance Board in October 2011 (“WSIB”) and the Criminal Injuries Compensation Board in May 2012 (“CICB”).

7In the WSIB application the applicant seeks compensation for stress, anxiety and depression which she attributes to her allegations of harassment in the workplace.

8In the application to the CICB the applicant is seeking compensation for medical expenses, pain and suffering, loss of wages/income, expenses for travelling to treatment, and financial losses associated with a bankruptcy that she alleges was the result of her having to quit her job. In the section of the CICB application form where the applicant is required to identify the type of crime for which she is seeking compensation she checked the boxes for “sexual assault” as well as “other” which she defines as “sexual harassment and verbal harassment”. The applicant indicates that she did not report her experiences to the police because she complained to her employer in accordance with the employer’s Workplace Violence and Workplace Harassment Policy.

9The applicant describes the incidents she is claiming compensation for as repeated, daily, verbal sexual harassment as well as inappropriate, sexual, physical contact. The applicant describes her allegations against her employer in terms of the employer’s failure to take appropriate steps to protect her. She also describes her decision to resign her employment which was precipitated by the harassment she allegedly experienced.

10The applicant received a letter dated July 30, 2012 from the CICB advising her that an interim ruling had been made in her case that the Board would deal only with the allegation of a single incident of sexual assault and not the broader issues of sexual harassment in her workplace.

11The applicant then filed this Application with the Tribunal on August 20, 2012, and provided an explanation for late filing:

I had to leave my employment with Skyline because I ended up having a mental breakdown from the harassment and abuse I received from Skyline management. I did file for Victim’s Compensation but they will only deal with the sexual assault and not the harassment I received. I just found this out last week. That is why I am filing this now.

12I agree with the respondent’s argument that the applicant was required to inform herself about her rights and act with diligence to file her Application with the Tribunal within the one year time limit. However, even if the applicant was aware of the time limit under the Code, I am satisfied that she has established a good faith explanation for the delay. The applicant is unrepresented and was clearly of the view that her issues would be addressed in the WSIB or CICB process or both. It was not until she was informed by the CICB that her harassment issues would not be dealt with by that Board that she filed with the Tribunal. This is not a case where the applicant awaited the outcome of those processes and then, dissatisfied with the result, attempted to file with the Tribunal for another “kick at the can”. Given the complex relationship between administrative Tribunals which deal with workplace-related issues, and the fact that reasonable people with legal training often disagree about what constitutes the appropriate forum, the applicant’s explanation for the delay meets the test of good faith.

13The respondent has not alleged that substantial prejudice will result from the delay which in this case, amounts to a few weeks.

14Accordingly, the Request to dismiss this Application is denied.

15The applicant has indicated that she will participate in mediation. The respondents have 14 days from the date of this Interim Decision to indicate to the Registrar whether or not they wish to participate in mediation, failing which, the Application will move to the next stage in the hearing process.

16I am not seized of this matter.