Matilda Margousian v. North York Chrysler, 2012 HRTO 2375

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matilda Margousian

Applicant

-and-

North York Chrysler, Tom Jamali, Vahid Bahmani, Ron Basir, Frank Protugal, Hossein Totochian, Ahmad Nabtiti, and Kevin Graca

Respondents

INTERIM decision

Adjudicator: Judith Keene

Date: December 20, 2012

Citation: 2012 HRTO 2375

Indexed as: Margousian v. North York Chrysler

APPEARANCES

Matilda Margousian, Applicant ) John Bartolomeo, Counsel

North York Chrysler, Tom Jamali, )

Vahid Bahmani, Ron Basir, ) Shannon Puddister, Counsel

Frank Protugal, Hossein Totochian, )

Ahmad Nabtiti, )

and Kevin Graca, Respondents )

1On August 31, 2011, the applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination on the basis of ancestry, place of origin, ethnic origin, disability, sex and age in respect of employment.

2The respondents filed a Response, in which they asked the Tribunal to dismiss the Application because the Application was commenced over one year after the alleged discrimination occurred, or the last incident in a series of alleged incidents of discrimination.

3The applicant filed a Reply to the Response in which she asserts that the Application was filed within one year after the last of a series of incidents to which the Application relates.

4Pursuant to an Interim Decision, (2012 HRTO 936) the Tribunal scheduled a hearing to “consider whether the Application alleges a continuing breach and/or what is the date of the last incident upon which the Application is based; whether the delay, if any, was incurred in good faith; and, whether if there was delay in filing the Application, substantial prejudice would result to anyone affected by the delay.” (at para 5).

5The applicant took the position that the Application was filed within the limitation period set out in the Code, because the telephone calls allegedly received by the applicant took place in September of 2011, and because those calls were part of “a series of incidents” for the purpose of s. 34(1)(b). While stating the applicant’s position that the Application was filed in good faith and that there was no substantial prejudice, counsel for the applicant called no evidence relevant to these latter issues. The applicant relied upon the material filed to date to establish the phone calls as “a series of incidents”.

6I heard evidence from Tom Jamali, President of the corporate respondent, and from Moe Sahakian, the general manager of the corporate respondent. Both witnesses gave their evidence under affirmation.

7I have concluded that the applicant has established a series of incidents for the purpose of section 34 (1)(B). My reasons for doing so are set out below.

LEGAL ISSUES AND SUBMISSIONS

8Section 34 of the Code states:

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.

9As noted above, the Application was filed on August 31, 2011. While both parties in their filed material were somewhat vague about the applicant's last day of work, the respondent now states that this was August 18, 2010. Assuming (without deciding at this early stage and in the absence of evidence) that incidents other than the phone calls may have taken place up to and including August 18, 2010, this raises the question as to whether the application was filed some 13 days after the expiry of the one year limitation period.

10The Tribunal’s approach to what is a “series of incidents” is developing on a case-by-case basis. It has been said that events are not part of a series of incidents if there is a significant break in the temporal connection between them. A gap of more than one year between events has been considered in some cases to interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. The Tribunal has also considered 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. See Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 2073; Baisa v. Skills for Change, 2010 HRTO 1621. The 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.

11Obviously, this is not a case in which there was a significant break in the temporal connection between the incidents alleged. The focus here is therefore whether the incidents as alleged 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. It is appropriate therefore to look at the nature of the allegations in the Application.

12As noted above, the Application as originally filed alleges discrimination on the basis of ancestry, place of origin, ethnic origin, disability, sex and age in respect of employment. The Application does not include allegations that make it clear why disability and age are included as grounds of discrimination.

13The Application contains clear allegations of sex discrimination; these include allegations of unwelcome sexual advances and other sexualized misbehaviour in the workplace, and of oppressive behaviour toward the applicant and another female staff member. Examples of the latter type of behaviour include named respondents allegedly throwing things at the applicant, hitting her with rolled-up paper, walking on her desk, and requiring her and another female staff person to take an IQ test during the summer of 2010. The Application also contains allegations that might relate to ancestry, place of origin or ethnic origin as well as sex; several of the allegations relating to Mr. Jamali involve him screaming and swearing at the applicant, and stating that “Armenians are stupid and uneducated” and “you are Armenian. You can’t do this or that”. There are also allegations that certain male employees addressed the applicant as “Miss Armenian”.

14The Application includes specific allegations that the applicant complained to respondents Totochian and Nabtiti about the incidents described, without success in getting her complaints addressed, and also alleges that the applicant made it clear to all the managers that she was emotionally hurt and unhappy with the ways she was treated at work.

15Finally, there is an allegation that the respondent Jamali repeatedly phoned and left messages in a ”demanding, abrupt voice concerning [the applicant’s] return to work September 2010”. These were further described in the applicant’s Reply as calls demanding that the applicant returned to work and then hanging up, and characterized as “the last of a series of incidents of sexual harassment”.

16The term “sexual harassment” is commonly understood to mean unwanted sexual advances and other sexualized behaviour; the use of the term to describe a telephone call demanding that a person return to work would probably not be understood as sexual harassment by most people. The definition of sexual harassment for the purposes of the Code may include but is not confined to unwanted sexual advances and other sexualized behaviour. More importantly, however, the question of whether a telephone call of the type alleged is sexual harassment is not the question at issue here. The question is whether the alleged telephone calls could be seen as part of a “series of incidents” in the context of a claim of discrimination on the grounds noted in the Application.

17Mr. Jamali had no recollection of telephoning the applicant in September. He testified that he may have done so, although it was not his usual practice to contact employees or former employees; he implied that ordinarily this would be left to the corporate respondent’s human resources staff. As noted above, the applicant relied on her written Application and submissions rather than testifying. In my view, it would be inappropriate to make a finding as to whether the telephone calls occurred without a full evidentiary record.

18For the purposes of this Interim Decision, I will assume without deciding that the calls were made and that they consisted of a peremptory demand that the applicant return to work. In my view such calls would be consistent with the allegations that Mr. Jamali displayed abusive behaviour toward the applicant because of her sex, her ethnicity or both, and with the allegations that the applicant's complaints to “the managers” of the corporate respondent were essentially ignored. I find therefore that the allegations concerning the phone calls are sufficiently connected to the other allegations that they form part of a “series of incidents” for the purpose of s. 34(1)(b).

19Because I have found that the applicant has established a series of incidents for the purposes of s.34(1)(b), I do not need to assess “good faith and no substantial prejudice” for the purposes of s. 34(2). However, I should briefly address the respondent’s argument that there is a “presumption of prejudice” when an Application is found to have been filed over one year after the incident or series of incidents to which the Application relates. In my view, no such inference can be drawn from the wording of s.34 of the Code. Indeed, far from there being a presumption of prejudice, there must be “substantial” prejudice in order to engage s. 34(2).

20On her Application, the applicant has indicated that she would be willing to attempt mediation. The respondents have not indicated an interest in mediation. If the respondents wish to attempt mediation, they may contact the Registrar within 10 days of the date of this Interim Decision. Otherwise, the file will be sent to the Registrar, who will establish a date for hearing in the usual course.

ORDER

21The Tribunal orders and directs as follows

a) The respondents’ request to dismiss the Application is denied.

b) If the respondents wish to attempt mediation, they may contact the Registrar within 10 days of the date of this Interim Decision to request mediation date be set.

c) If the respondents do not request mediation within 10 days of the date of this Interim Decision, the Registrar will establish a date for hearing in the usual course.

22I am not seized.