HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alan Shreve
Applicant
-and-
The Corporation of the City of Windsor
Respondent
INTERIM DECISION
Adjudicator: Kaye Joachim
Indexed as: Shreve v. Corporation of the City of Windsor
APPEARANCES
Alan Shreve, Applicant ) Selwyn Pieters, Counsel
The Corporation of the City of Windsor, Respondent ) Patrick Brody, Counsel
Canadian Union of Public Employees, Respondent ) Matthew Todd, Counsel
1This is an Application received on September 23, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to address the respondent employer’s Requests for Orders.
2The applicant alleges that the respondent employer, has "created, condoned and maintained an abusive, hostile and poisoned work environment towards Black, racial and ethnic minority employees on a regular and systemic basis". The environment is created, he alleges, by "severe, pervasive and offensive language" based on race, color and ethnic origin. To support this general allegation he complains about four discriminatory incidents that the Application refers to as discriminatory incidents numbers one to four.
3The respondent union was added as a party by the respondent employer.
Timeliness of Allegations
4First, the respondent employer seeks an order finding that the Applicant’s allegations relating to Discriminatory Incident #1 and Discriminatory Incident #2 relate to incidents that occurred more than one year prior to the Application and should be dismissed for delay. The allegations relating to these two incidents are found in paragraphs 4 to 17 of the Application.
5Section 34 of the Code sets a limitation period for bringing applications alleging infringements of the Code:
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.
6Section 34 of the Code allows applications alleging discrimination under the Code to be made within one year of the incident (or last incident of a series) of alleged discrimination.
7Both Discriminatory Incident #1 and Discriminatory Incident #2 occurred more than a year before the Application was signed. Discriminatory Incident #1 is alleged to have occurred on February 10, 2005 and Discriminatory Incident #2 is alleged to have occurred on September 27, 2007. As mentioned above, the Application was received by the Tribunal on September 23, 2009. Clearly these two incidents are out of time.
8The applicant responds that Discriminatory Incidents #1 & #2 are part of a series of continuing events, and, together with the later events alleged in the Application, form one factual matrix that is interconnected and weaved together. The applicant also submits that any delay was incurred in good faith and no substantial prejudice will result to the respondent employer by the delay
9In R. M. v Toronto Police Services Board, 2011 HRTO 410, the Tribunal, after reviewing earlier decisions (Savage v. Toronto Transit Commission, 2010 HRTO 1360, Chintaman v. Toronto District School Board 2009 HRTO 1225) observed at para. 20:
Generally, events are not part of a series of incidents if there is a 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.
10Discriminatory Incident #1 occurred more than 4 ½ years before the Application was made. Further, there is a gap of some 2 1/2 years between Discriminatory Incident #1 and Discriminatory Incident #2. In view of the length of time that separates Discriminatory Incident #1 from the remainder of the Application, I am satisfied it does not form part of the same "series of incidents".
11I decline to apply s. 34(2) to permit the Applicant to proceed with his allegations about Discriminatory Incident #1. He has not provided evidence of circumstances that prevented him from applying within the prescribed time and therefore has not established that the delay was incurred in good faith.
12Discriminatory Incident #2 is alleged to have occurred on September 27, 2007. Central to his allegations about this incident are the inadequacies he perceives in the way the respondent employer dealt with it. The respondent employer imposed discipline in the form of a five day suspension of the offending employee. The employee grieved the five day suspension and the arbitrator reduced the suspension to one day. The applicant continued to pursue other internal avenues to address the September 27, 2007 incident.
13Discriminatory Incident #2 is connected to Discriminatory Incident #3 alleged in the Application. Discriminatory Incident #3 is alleged to have occurred during a training session that was part of the respondent employer’s response to Discriminatory Incident #2 and other matters. As well, Discriminatory Incident #2 may have some relevance to understanding and assessing the applicant’s reaction to Discriminatory Incident #4 alleged in the Application.
14I am satisfied that Discriminatory Incident #2 bears some connection to Discriminatory Incidents #3 and #4. Noting that no objection is taken to the timeliness of Discriminatory Incidents #3 and #4, I conclude that Discriminatory Incident #2 should be considered to form part of the same series of incidents as covered by the Application.
15I order that the allegations about Discriminatory Incident #1 in paras. 4 and 5 of the Application be struck, and the remaining paragraphs will form the basis of the upcoming hearing.
The Will Say of Luis Alvarez
16The applicant proposes to have Mr. Alvarez testify about events that occurred in 2003 and 2006.
17The Respondent employer requests an order that evidence of Mr. Alvarez should not be heard because they preceded the Application by more than one year.
18The incidents in Mr. Alvarez’ proposed testimony are not connected with the incidents alleged in the Application. The Applicant tenders his evidence as similar fact evidence of the poisoned work environment alleged in the Application.
19Generally, similar fact evidence has great probative value in determining allegations of a poisoned work environment. As always, though, the admissibility of similar fact evidence is determined on a balancing of its probative value against its prejudicial effect. The Application in this case alleges the respondent’s employees suffer a poisoned work environment on “a regular and systemic basis”. The probative value of Mr. Alvarez’ testimony is limited because it pertains to 2003 and 2006. The focus of this Application is on the period from September 2007 to July 2009. Similar fact evidence about events that took place from 2003 and 2006 has little relevance in establishing a “regular and systemic” poisoned environment in later years. The environment of a workplace can change over time. It would be prejudicial to allow evidence of events that occurred in 2003 to 2006 to determine whether the applicant’s workplace was poisoned at a later time.
20I conclude that the prejudicial effect of Mr. Alvarez’ proposed testimony exceeds it probative value. His testimony will not be admitted. His will say statement (Exhibit 7, Tab 28) will be removed from the record. Exhibits 9 and 10 which also relate to Mr. Alvarez’ proposed testimony will also be removed from the record.
Will Say Statement of Louis Davis and related Documents
21The Will Say Statement of Louis Davis recounts that he left his work environment in early 2007 due to “health problems that were exacerbated by constant work-related stress, racial discrimination, harassment and retaliatory actions from the employer…". It states that in June 2007 Gemma E. Smyth was hired by the respondent employer to conduct dispute resolution of various issues, including those of Mr. Davis. As a result of the meetings, Mr. Davis returned to work.
22The documents that Mr. Davis intends to refer to in his evidence include an unsigned copy of a letter from Gemma Smyth to the Respondent employer dated July 9, 2007, in which she reports on the mediation meetings between the managerial employees and Mr. Davis. She does not disclose the confidential nature of the discussions but reports the results. She reports that "The parties felt that the City's Human Rights Policy does not adequately deal with issues of systemic discrimination in the workplace, specifically when there is no traditional complainant." It goes on to allege that four out of five of the managerial employees refused to sign a Memorandum of Understanding prepared by Dr. Smyth.
23Mr. Davis also proposes to identify that unsigned Memorandum of Understanding between the union, the applicant, and the employer.
24The respondent employer seeks an order excluding these documents on the basis that they appear to be confidential information. The respondent employer also seeks to exclude Mr. Davis’s proposed evidence on these documents as a breach of confidence and because the events he alleges occurred more than one year prior to the complaint.
25I have not been persuaded that these documents and the allegations of Mr. Davis should be excluded solely on the basis that they are confidential. The basis of the documents' confidentiality is not clear. On the one hand, Dr. Smyth refers to the meetings as “mediation meetings” and declines to reveal the content of what she describes as “confidential mediation sessions”. On the other hand, Dr. Smyth in that same letter reports on matters that were discussed during those sessions. This lessens the confidentiality of those meetings.
26In any event as the Divisional Court pointed out in Ministry of Correctional Services v. McKinnon, 2010 ONSC 3896 at para 4:
Any privilege is not absolute. It is subject to exceptions. One of these exceptions is where the settlement documentation is necessary for the proper disposition of a proceeding
27However, the partial confidentiality of the discussions combined with the lack of probative value of Mr. Davis’s evidence persuades me that his evidence on these matters should be excluded.
28Mr. Davis left the workplace in early 2007. He proposes to give evidence of his experiences in the workplace well prior to 2007. This is clearly outside the time period which is the focus of this complaint: September 2007 to July 2009.
29The Applicant submits Mr. Davis’ allegations are similar fact evidence of the poisoned work environment alleged. I repeat the analysis I made of Mr. Alvarez’ proposed testimony. Mr. Davis’s allegations, though similar to those of the applicant, do not relate to a poisoned work environment in the time covered by the Application. The prejudicial effect of admitting partially confidential and similar fact evidence of occurrences prior to early 2007 to support the Application exceeds its probative value.
30Mr. Davis will not be permitted to testify about the matters set out in his will say statement, Dr. Smyth’s letter of July 9, 2007, or the unsigned Memorandum of Understanding. Those documents, contained in the applicant’s Book of Documents (Exhibit 7, tabs 29 and 30) shall be removed from the record.
31I note that the Application indicates in paragraph 19 that Mr. Davis was present during alleged discriminatory Incident #3. Mr. Davis is permitted to give evidence regarding his knowledge of discriminatory incident # 3.
Conclusion and Order
32I order the following:
The allegations about Discriminatory Incident #1 in paragraphs 4 and 5 of the Application are struck and do not form part of the subject matter of the hearing;
The proposed testimony of Mr. Alvarez will not be admitted and Exhibits 7 Tab 28, 9 and 10 are removed from the record;
The will say statement of Mr. Davis and the associated documents found at Exhibit 7 Tab 29 and 30 are removed from the record; and
Mr. Davis is allowed to give evidence with respect to his knowledge of discriminatory Incident #3.
33I am not seized with this Application.
Dated at Toronto, this 8^th^ day of February 2012.
”signed by”_____________________
Kaye Joachim
Member