Julie Cosby v. Aditya Birla Minacs Worldwide Inc. and Faron Hayden, 2012 HRTO 2389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Cosby Applicant

-and-

Aditya Birla Minacs Worldwide Inc. and Faron Hayden Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 21, 2012 Citation: 2012 HRTO 2389 Indexed as: Cosby v. Aditya Birla Minacs Worldwide Inc.

WRITTEN SUBMISSIONS

Julie Cosby, Applicant ) Christopher J. Bittle, Counsel Aditya Birla Minacs ) Kathryn J. Bird, Counsel Worldwide Inc., Respondent ) Faron Hayden, Respondent ) Self-represented

1This Application was filed on March 2, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). The applicant alleges that she was subjected to discrimination and harassment on the basis of disability and sex.

2The applicant alleges that she was subjected to sexual harassment by the personal respondent and that as a result of the harassment she was required to take medical leave. The applicant alleges that, although the corporate respondent investigated her concerns during her medical leave, the company failed to take adequate steps to protect her from the poisoned work environment upon her return. The applicant alleges that the corporate respondent moved the personal respondent only 15 feet away from her and, as such, she was compelled to resign her job on March 3, 2011.

3The corporate respondent filed a Response on April 19, 2012, denying the allegations. The corporate respondent alleges that it commenced an investigation of the applicant’s concerns immediately upon being alerted of the alleged harassment. The corporate respondent alleges that the personal respondent was properly disciplined. The corporate respondent alleges that the applicant’s physician failed to provide any particulars to support that the applicant was totally disabled. In its Response, the corporate respondent expressly denies that it is in any way liable for the personal respondent’s alleged conduct. The Response also raised the issue of delay.

4On June 6, 2012, the corporate respondent filed a Request for an Order During Proceedings (“Request”) seeking that the Application be dismissed under section 34(1) of the Code as untimely. The corporate respondent requests that a hearing be convened for the purposes of adducing viva voce evidence with respect to the issue of delay. The corporate respondent alleges that the last possible incident was February 10, 2011, when it informed the applicant of the measures it would take upon her return to address her concerns of harassment, including transferring the applicant to another team. The corporate respondent asserts that the date of the applicant’s resignation cannot serve as the date for the Code’s time limitation because the resignation is merely an “effect” of the alleged discrimination and not an “incident”.

5On June 20, 2012, the applicant filed a response opposing the corporate respondent’s Request to dismiss. The applicant alleges that during her medical leave she requested that she be moved away from the personal respondent and that this request was denied by human resources. The applicant alleges that her disability was exacerbated by being present in the same room as the personal respondent. The applicant alleges that on March 4, 2011, the applicant met with representatives of the corporate respondent at which time she explained the nature of her disability and the reasons why she was resigning. The applicant alleges that no accommodation was offered to her at this meeting. The applicant asserts that this event constitutes the final violation of the Code in a series of incidents related to the sexual harassment and the applicant’s disability.

6The personal respondent filed a Response on August 9, 2012. The personal respondent denies the applicant’s allegations and claims that much of the applicant’s Application is false. The personal respondent alleges that he once spontaneously hugged the applicant in order to express sympathy when she was crying upon learning that she was diagnosed with cancer. The personal respondent submits that the Application is untimely because he had no contact with the applicant after he was made aware of her concerns of harassment in January or February 2011. The personal respondent alleges that the applicant was moved 40 or 50 feet away from him. The personal respondent alleges that the applicant did not disclose reasons for her medical leave and that the applicant worked a half-day before resigning.

Analysis & Decision

7Section 34(1) of the Code provides:

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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

8In examining potential delay, the Tribunal must first determine whether an application was filed more than a year after the incident or the last incident in a series of incidents of alleged discrimination. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.

9Pursuant to s. 34(1)(b) of the Code, an application is considered timely if it is made within one year following the last incident in a “series of incidents”. Recently, in Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal explained the concept of a “series of incidents” at paragraphs 33-37:

The Tribunal has had occasion to consider the application of section 34(1)(b), but its approach to the notion of a “series of incidents” is evolving. As the Tribunal’s jurisprudence shows, the distinction between a single act with continuing effects or a succession of separate acts or violations poses particular challenges. The distinction may be a subtle one and it can depend considerably on the circumstances of each case.

In situations where there is an ongoing relationship, such as an employment relationship, it is sometimes difficult to determine when, as well as whether or not there are ongoing incidents of discrimination within that relationship. For example, the Tribunal has held that the date of the last incident is the date that an announcement about a future retirement or layoff was made, rather than the effective date of the retirement or layoff. See Degen v. Toronto (City), 2011 HRTO 319 at para. 6 and Woodbeck v. Thunder Bay (City), 2011 HRTO 666. In other situations, the Tribunal has held that the last incident of discrimination is the date that precedes the date of an announcement or the date of the actual cessation of employment rather than the date the employee announcement an intention to retire. See Lechet v. Casey House, 2011 HRTO 620.

In accommodation situations, the Tribunal has held that it is not an ongoing incident of discrimination where an employer has made a particular decision about an applicant’s accommodation and the applicant tries repeatedly to have the employer reverse or change its position. See Hoblack v. St. Mary’s Cement, 2010 HRTO 1799 at para. 21 and Huo v. University of Western Ontario, 2012 HRTO 198 at para. 13. See also Heslin v. Univar Canada, 2010 HRTO 1885 at para. 6 pertaining to an applicant’s ongoing objection to the respondents’ decision to deny him sick benefits. On the other hand, where there is a material change and/or further information is provided, the employer’s continual denial to change its position may constitute a further alleged incident of discrimination. See Whyte v. Sudbury (City), 2011 HRTO 885 at paras. 10 to 12.

In situations where the employment relationship ends and the applicant receives payments from his or her former employer in the form of severance monies, benefits or pension amounts, the Tribunal has generally held that the date of separation is the last incident of discrimination. These determinations are notwithstanding the applicant’s assertion that the discriminatory effects of the monetary payments and/or ongoing settlement discussions amount to further incidents of discrimination under section 34(1) of the Code. See Longtin v. Great West Life Assurance Company, 2011 HRTO 244 at paras. 18; Hiamey v. Conseil Scolaire de District Catholique Centre Sud, 2012 HRTO 301 at para. 24; and Bezaire v. Prestressed Systems, 2012 HRTO 777 at para. 10. However, in Lambe v. OMERS Administration, 2010 HRTO 2200, at para. 28, the Tribunal found that the last incident of discrimination was not the applicant’s termination date, but rather the date that he began to receive pension benefits, approximately four years after his termination and approximately six years before he filed his Application.

In some instances regarding the provision of services, the distinction between an incident of discrimination and its continuing effect is even more difficult to draw. For example, in Clarke v. Canadian Blood Services, 2011 HRTO 411, the Tribunal held that the respondent’s ongoing refusal to accept blood donations from the applicant did not amount to a series of discrimination but rather arose from a single incident, the decision to ban her blood donations in 2002. In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal held that an ongoing exclusion from a university pursuant to a trespass notice did not constitute a series of incidents within the meaning of section 34(1). It held instead that the issuance of the trespass notice was the last alleged incident of discrimination and that the ongoing exclusion of the applicant from campus was a continuing effect of this single incident of discrimination.

10When assessing whether the allegations relate to a “series of incidents”, within the meaning of section 34(1)(b), the Tribunal considers 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 AlSaigh v. University of Ottawa, 2012 HRTO 2 at para. 8, and cases cited therein. 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”: see Pakarian v. Chen, 2010 HRTO 457. A “series of incidents” may be considered to exist where there is a common theme, similar parties and/or circumstances.

11The corporate respondent contends that the Application is untimely because the last series of events occurred in February 2011 when the applicant was informed of the steps taken by the employer to address her concerns. The corporate respondent submits that the applicant’s March 2011 resignation is simply the “effect” of the past discriminatory conduct and a does not form part of the “series of incidents”. The corporate respondent argues that the applicant’s March resignation does not extend the February timeline.

12The parties appear to agree that the applicant provided verbal notice of her resignation on March 3, 2011 and written notice on March 4, 2011. The corporate respondent provided a copy of the applicant’s resignation letter dated March 4, 2011. In this letter, the applicant states that, on the advice of her doctor, she cannot go back to work as she is unable to “mentally” cope with the sexual harassment issue.

13I appreciate from the corporate respondent’s perspective the last event in relation to its investigation of the sexual harassment occurred in February 2011 when the company informed the applicant of the steps it had taken to address her concerns. However, this position does not consider the applicant’s perspective that the poisoned work environment did not abate with the personal respondent’s on-going presence in the same room as where she worked. In addition, the applicant alleges that her disability-related needs were ignored at the time of her resignation in March 2011.

14The allegations of the corporate respondent’s duty to accommodate following the applicant’s indication of mental health concerns appears to be connected to the alleged failure to protect the applicant from a poisoned work environment which the applicant claims were raised during her medical leave.

15In light of the applicant’s allegation of disability discrimination and the contents of the resignation letter, I agree with the applicant’s submissions that the corporate respondent’s alleged failure to address the applicant’s disability-related concern is the last event triggering the Code’s limitation period. As such, I find that the disability discrimination allegation in this case distinguishable from the cases cited by the corporate respondent which differentiate between a discriminatory effect versus a discriminatory incident.

16I find that the alleged events culminating in the applicant’s resignation, including her medical leave, request to be moved away from the personal respondent, the March 3 or 4th meeting and communications, as well as the issues raised by the March 4th letter of resignation, constitute incidents within a “series” as contemplated by the Code. I find that the chronology establishes a series of alleged acts of sexual harassment and disability discrimination. As such, based on this chronology of alleged discriminatory events, it appears the Application comes within the timeframe described in section 34 of the Code as the last alleged incident took place on March 4, 2011, and the Application was filed on March 2, 2012. I note that my finding in regards to the timeline is in no way an indication of the merits of the allegations.

17In sum, I find the alleged events of March 3 and 4, 2011 are sufficiently proximate in time with the previous events and involve overlapping facts and issues related to the alleged sexual harassment and disability discrimination to be considered a series of incidents for the purposes of section 34 of the Code. Because I have found that the applicant has established a “series of incidents” within the purview of section 34(1)(b), I do not need to assess “good faith and no substantial prejudice” for the purposes of section 34(2).

Conclusion

18Accordingly, the respondents’ request to dismiss the Application because of delay is denied.

19I am not seized of this matter.