Farahani v. Toronto (City), 2012 HRTO 444

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hajar Farahani Applicant

-and-

AND BETWEEN:

City of Toronto Respondent

-and-

Canadian Union of Public Employees. Local 79 Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle Date: March 1, 2012 Citation: 2012 HRTO 444 Indexed as: Farahani v. Toronto (City)

APPEARANCES

Hajar Farhani, Applicant ) Self-represented City of Toronto, Respondent ) Amandi Esonwanne, Counsel Canadian Union of Public Employees, ) James Nyman, Counsel Local 79, Intervenor )

1This is an Application filed on June 18, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges that the respondent discriminated against her in employment on the basis of race, place of origin, ethnic origin, association with a person identified by a protected ground and reprisal or threat of reprisal.

2The respondent filed a Response, denying any discrimination.

3The applicant’s bargaining agent, Canadian Union of Public Employees, Local 79, has filed a request to intervene. The respondent objected to the request to intervene at the Summary Hearing stage.

4Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on July 15, 2011, directing that a summary hearing take place. The CAD also noted that some of the allegations may be untimely. The CAD directed that at the summary hearing, the applicant would make argument about why the Application should not be dismissed, in whole or in part, as having no reasonable prospect of success, and advised her that she was to point to the evidence upon which she would rely to prove a link between the respondent’s actions and the grounds cited. It also directed that she should outline in her submissions why the allegations should be considered timely under s. 34 of the Code.

5The summary hearing was held by conference call on November 25, 2011.

DECISION

6For the reasons that follow I find that many of the allegations are untimely and that but for one allegation, the allegations in the Application which relate to race, ethnic origin and place of origin have no reasonable prospect of success and are dismissed.

7For the reasons that follow, I do not find that certain of the allegations in the Application which relate to reprisal can be dismissed as having no reasonable prospect of success.

ANALYSIS

Summary Hearings

8In a summary hearing, the issue is whether the application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application or a part of it will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Application to the Facts

10The applicant commenced her employment as a Community Housing Worker (job title changed around 2005 to Agency Review Coordinator) at the respondent in June, 2001. In her Application, she alleged that the discrimination has been subtle and “ongoing” since she started work there. She alleged that it escalated after September 11, 2001, but that there were positive changes when she was working under a new manager in 2007 and 2008. She alleged that a “poison work environment began evolving again” with the assignment of another new manager in mid-January 2009”.

11The narrative provided by the applicant is quite lengthy, with allegations dating back to 2001. The applicant describes herself as a Middle Eastern/Iranian Canadian and alleged that after September 2001 she began to feel discriminated against on the basis of race, place of origin and ethnic origin. Generally, her allegations can be described as allegations that she was isolated at work, did not receive work on certain committees and did not receive sufficient acknowledgement from management for her efforts.

12The applicant described the alleged discrimination as “subtle” and many of her allegations are vague, though she gave some examples:

• she was given a small office without a window and was located away from her team;

• subsequent to the events of September 11, 2001, a co-worker stated that “they” could be anywhere….even in government cubicles;

• co-workers slammed office doors;

• co-workers did not make eye contact with her or share information

• she was “shut down” and embarrassed at meetings, for example when a co-worker yawned and said that there was no air in the room

• co-workers laughed at her accent, though she provided no particulars regarding what was said or how she could conclude any laughter she heard was directed at her or her accent.

• co-workers removed her name from the list of presenters at meetings she attended as an Agency Review Coordinator;

• she was not invited to be on certain committees

• she did not receive the “strong acknowledgements for a long time” which she believes colleagues would have received when she cancelled a day vacation in order to attend a team meeting

• she did not receive media clips related to her work despite having asked to be included on the circulation list

• she did not receive “formal acknowledgement” from her managers for extra time and efforts she had expended in organizing a conference

• she heard a co-worker say “a piece of shit, I am going to blow it out” and she alleged that this was a reference to her.

• she was unsuccessful in job competitions in 2004, 2005 and 2007 for Agency Review Officer (ARO) positions, due to discrimination and also alleged that she has removed her name from competitions because she was led to believe that the posted positions were really intended for those individuals who had been occupying them on a temporary contract basis.

13In her Application, the applicant stated that in 2007 a new manager came and he “tried to give every team member some projects and to develop team capacity”. She stated that for a while “the work environment became more peaceful and I also got the chance to get involved with a couple of working groups and conduct training sessions for the community staff, work on the risk assessment forms, etc.”. She stated that she applied for and was awarded a posted contract position for ARO “despite lots of politics on the ground”. She alleged that she “received congrats only from a couple of staff”.

14The applicant alleged that in January 2009, a new manager was brought in to her unit and that she was a close friend of the previous management and staff who had ignored her. She alleged that the new manager had limited time to discuss work matters with her, though she had time to meet with other AROs.

15The applicant’s allegations relating to one year period prior to her June 18, 2010 Application are as follows:

• in a meeting in mid-September 2009, the General Manager asked her a question about the name of a committee and two co-workers, including the new manager, “jumped in” and did not allow her to answer the question;

• there was a “wave of rejections and confrontations” and after May of 2009, she participated in a working group for an annual report but was “confronted and embarrassed by a colleague on an irrelevant matter” and was ignored in follow-up meetings. She alleged that she left the group after two meetings but was not thanked or asked to stay on;

• when the new manager’s assistant was hospitalized, she told the new manager that she would visit the assistant at the hospital, but the manager told her not to. She alleged that she did visit a couple of days later and that the new manager was the only other staff person to visit the assistant in hospital. She alleged that the new manager had asked her to take magazines to another, Caucasian, co-worker when she was hospitalized;

• in a November 27, 2009 meeting, the new manager asked her to speak about an idea she had to bring online resources in one place for the housing help workers and that she received approval from the General Manager and from the new manager, but that co-workers complained of not having been consulted, and an individual she refers to as RF “hammered” her. She sent an email to the new manager to ask for a meeting and to complain about having been “put down” often by a co-worker and about “the embarrassing event of the meeting”. She alleged that at the meeting with the new manager, the manager yelled at her and disrespected her and told her she should not have sent her an email, but could have spoken to her instead. The manager asked her why she did not leave if she felt harassed at work. She alleged that the new manager saw she was upset, her tone softened, and the new manager said that she had noticed that her work had been scrutinized often. She alleged that when the new manager did not check to see if she was alright at the end of the day, but around that period had driven a colleague recovering from a cold home at the end of the work day;

• in a meeting with the new manager and others on December 23, 2010, the new manager said that she was going to confirm at the November 27, 2009 meeting that the applicant had consulted staff on the initiative, but that someone had interrupted her. The applicant alleged that no one had interrupted the new manager. She alleged that the manager “generally…agreed with 4 other examples of her excluding me and putting me down, esp at meetings.” The new manager postponed a discussion regarding her “inappropriate intervention in my role overseeing two projects” and has not met with her about it since. She alleged that the new manager has met with people to eliminate her from participating in a working group to which she had been assigned;

• After she complained to her manager regarding discrimination November 27, 2009, the same person who had previously said “piece of shit” had passed by her cubicle and said “shit”;

• someone from a community agency, who was sick, moved her chair closer to the applicant and said that she wanted to cough in the applicant’s face. She also alleged that the same individual had pushed a microphone away the previous summer instead of simply saying thank you. She alleged that this individual is a friend of her new manager;

• on December 18, 2009, the new manager gave her a reprisal letter, though it was revised on January 4, 2010. She alleged that the letters contained false accusations which relate to performance issues around writing. Two years before she was in a different position and did not receive two days of training in writing which the AROs at that time received;

• on February 2, 2010, she sent an email to the General Manager to request a meeting with him regarding her “long time systemic discrimination experience leading to the recent events”. She alleged that her manager was “very upset” and avoided her and it appeared that the news of her email was widely known in her work area. She also alleged, however, that since her complaint to the General Manager, her manager “says hello and good bye to me loudly that people from other units hear her talking with me”. She alleged that she noticed “lots of office doors” were closed that day and have continued to be closed since then;

• she met with the General Manager on February 16, 2010 and told him that there was “systemic discrimination” against her and “some others”. She alleged that she showed him the December 17, 2009 and January 4, 2010 letters from her manager and told him that this was discrimination. She alleged that she showed him an excellent reference form a previous manager and very positive feedback from senior staff in other Divisions and community agencies. She also alleged that she told him that she was concerned that her son, who also worked for the respondent, was suffering negative consequences due to her complaint;

• on March 4, 2010, her General Manager met with her again and advised her that her Director and Manager had her best interests in mind and she should “go through the process with them”;

• since that time, her new manager avoids her, but if she speaks with her, keeps her at the door and speaks loudly “that people know she is working with me”. She also alleged that she has worked above and beyond what is required of her, but gets no recognition;

• her new manager called her into her office on February 5, 2010 and “harrassed me” with an allegation that she had not responded to a colleague’s comment at a meeting. The new manager told her to go to speak with the colleague and alleges that this was unequal treatment as other staff are permitted to “confront me for irrelevant matters and untrue allegations” at meetings and embarrass and exclude her. She also alleged that the new manager asked her who she would write to in response to the allegations. She alleged that her new manager was aware of the fact that she was looking into complaint processes and that the manager herself had suggested anti-oppression training for future staff training. She also alleged that she stated in this meeting that the new manager was not working with her as much as she was working with other AROs and that she was not receiving the same level of support and respect as the others. She alleged that the new manager monitors her emails and does not reply to all of her emails, but that when she replies she sounds very supportive, but in reality, she is not. She alleged that if she wants to speak to the new manager she is supposed to send an email and await a response, but that other workers may go into her office and sit and talk. She alleged that the new manager shuts her door so she will not hear and that the new manager tries to ignore her in the hallway when she approaches her to discuss work;

• the new manager and the Director have cut her off from various work activities and that the Director communicates to her through other people, though she communicates directly with other AROs. She also alleges that management at the respondent attempts to limit her involvement and to micromanage her;

• since February 2010, the new manager has increased the involvement of a particular co-worker “with our work as she knows MC can bully and confront me with no hesitation”;

• since 2009, the co-worker she refers to as RF works as an acting manager for her unit and that when she wrote a thank you email to staff regarding work during the holiday, she left the applicant’s name off the thank you. The applicant does not provide a date for this. She alleged that this same coworker claimed credit from the applicant for team achievements in 2008. She alleged that this coworker yelled at her in a staff meeting in March 2010 when she asked her opinion on a drop-in project’s surplus. She alleged that RF later sent an apology to the team, of which the applicant is a member. She alleged that RF “insulted and attacked me at the meeting without any actions from management to address the issue”;

• she spoke at a conference out of town but that in the process of authorizing her to go to the conference, there was confusion in the offices of the City Manager with regard to whether she was speaking at or merely attending the conference. She alleged that this caused her stress;

• she attended a meeting and spoke about a committee she had helped to convene, but that when she was called upon to speak her knees began to shake and her throat was dry, due to “the way that the unit’s director called me to the front and given recent events”;

• she asked to speak at an April 2010 meeting and that a co-worker “rolled her eyes to the ceiling and openly ridiculed me with a sarcastic laugh”, but that her new manager and the manager’s manager were present but did not react. She provided no particulars with respect to the “open ridicule” she indicates occurred. She alleged that the new manager had been attentive to the co-worker at a previous meeting when the co-worker spoke;

• at an April 13, 2010 meeting, a co-worker said that she likes to work with RF. She alleged that the co-worker said that programs should filter unqualified users, for example “rich immigrants lining up at food programs”. She alleged the co-worker stated that there is a U of T program which gives $28,000.00 per year and TTC tokens to rich immigrants. She alleged that these comments were irrelevant to the meeting topic and that there was a “hum in the room”. She alleged that she wanted to make the discussion relevant to their work and stated that she had not heard about the U of T program, but that perhaps it would be good information to share at the Immigrant and Refugee Housing Committee. She alleged that another ARO “loudly laughed, ha-ha Azar [the name by which the applicant is known at work] wants to know about the program”. She alleged that someone then commented that services can be abused by many groups, all the time, and that the coworker who initiated the discussion said that she believes in karma, and that what goes around comes around.; and,

• her new manager met with her son’s manager behind closed doors on February 2, 2010 and she became concerned that the tensions would have an impact on his upcoming job competition with the same respondent employer. She alleged that her son received a telephone call on February 5, 2010 regarding shift changes and that ultimately he was removed from the schedule. She alleges that this was orchestrated by a woman who had been her coworker 11 years previous. She alleges that he suffered further negative consequences at work;

16On November 8, 2010, the applicant filed a Request for Order During Proceedings (RFO) in which she sought to amend her Application. In particular, she sought to add allegations that her Director assigned an additional Chair to a committee for which she was to be Chair. She also alleged that roles have been passed on to a colleague without her knowledge. She also alleged that she received a disciplinary letter at a disciplinary meeting October 14, 2010 with respect to a staff meeting September 17, 2010. She also alleged that she was presented with a document indicating that her 24 month contract, which was to have expired September 24, 2010, was extended to December 31, 2010, but she alleged that she had never previously been informed that she had a 24 month contract. She also sought to amend the remedies requested.

17In its Response, the respondent denied any discrimination. Additionally, it argued that much of the Application is “general and imprecise” as well as untimely and should be dismissed. In addition to responding at some length to those particulars which the applicant has provided, it submitted that there is no nexus between the allegations and the applicant’s Code rights and requested that the Application be dismissed on that basis.

18With regard to the applicant’s claim that she has been isolated and not been permitted to work on committees, the respondent alleged that she has participated in more activities and initiatives than all but one of the other AROs in the unit and provided examples of committees she is involved in and one she co-chaired as an ARO and one she co-chaired before becoming an ARO. The respondent also alleged that no ARO chairs more than one committee and that a number of them do not even chair one committee. The applicant has not disputed this in her Reply.

19With regard to the allegation about a discussion of immigrants on April 13, 2010, the respondent alleged that it took place at a meeting where a program for newcomers was being discussed and that the individual who spoke “commented that sometimes the individuals who end up accessing these services are immigrants with substantial financial resources” and that she gave an example of one program where that had happened. The respondent alleged that the group then discussed how to structure the program so that it reaches those who are in the greatest financial need. The respondent alleged that they discussed how difficult it is to determine who needs the services the most without being unnecessarily intrusive. The respondent alleged that the conversation was brief and constructive and had not been negative or inappropriate.

20With regard to the allegation that the new manager sent an inappropriate letter to the applicant on December 17, 2009, the respondent submitted that the new manager gave a letter of expectation to the applicant regarding her writing and planning skills, but that the letter was non-disciplinary. The respondent alleged that the new manager told the applicant that the letter would not go on her corporate employee file, but that the applicant had been concerned that the letter only spoke of her weaknesses and not her strengths. The respondent submitted that the new manager gave the applicant another letter on January 4, 2010, addressing some of the concerns that the applicant had raised with the earlier letter and stating strengths.

21The respondent requested that the applicant’s RFO be denied. In addition to responding to those particulars which the applicant has provided, they submitted that, similar to the Application, there is no nexus between the allegations and the applicant’s Code rights. With regard to the October 1, 2010 letter of discipline, the respondent submitted that there was just cause for the discipline, as the applicant had been insubordinate at a meeting on September 17, 2010. With regard to the renewal of the applicant’s contract ARO position, they submitted that it was known from the beginning that the position was temporary only, and provided the appointment letter dated September 15, 2008, which confirmed an end date on or before September 24, 2009. The respondent submitted that the contract extension benefits the applicant as the ARO position is at a higher rate of pay, and the longer she stays in the position, according to the applicable collective agreement, the less onerous any job competition for a permanent position as ARO will be, as she will be “deemed to be qualified and will not be required to participate in an assessment”.

22With regard to the complaint the applicant made to the employer in February 2010, the respondent alleges that the discussion was about general work related issues and “non-Code” bullying and that the individuals about whom she complained did not know she was alleging they had discriminated against her until receiving the Application on or around September 10, 2010. The respondent submitted that given the applicant’s failure to allege any violation of the Code prior to the Application, the allegations of reprisal have no reasonable prospect of success and should be dismissed.

23In her Reply, the applicant alleged that she had never before received any notice of extension of her contract and that such matters are normally automatic and that no one is ever returned to their home position. She alleged that she is being kept “on a leash” by the new manager. She also alleged that in making her complaint to management in February 2010, she stated that she believed there was racism and Code-related discrimination.

24On November 10, 2011, the applicant filed another RFO, seeking to make further amendments to her Application. She made further broad allegations regarding having her tasks interrupted or distributed to others and being excluded from committees. She alleged that these actions intensified since her human rights complaint and she gave some examples. She alleged that her new manager made a “degrading comment” about her at a meeting in talking to a community project manager. She alleged that her new manager set up confrontations with coworkers. She alleged that she was ignored and interrupted in a community meeting. She alleged that her name was removed from a mailing list for a project. She alleged she was asked to speak at a meeting to provide update on a project, but that she was not consulted in advance and that this was rare. She alleged that when her new manager’s Blackberry telephone went missing, her new manager believed it was the applicant who had taken it, and she alleges that the new manager “made gestures that were hinting she suspects that I have taken her phone”. The applicant alleged that the new manager sent out an email saying that though the phone was found outside her office when she had left work it had been in her office and she ordered a lock for her door. The applicant alleged that this caused damage to her reputation at work. She alleged that her new manager and three AROs “harassed” her as they approached her and reminded her in the summer of 2011 that the employer was offering a voluntary severance program. She alleged that her emails, computer and papers in her cubicle are being scrutinized, as she found ink spots on her carpet and has noted changes in her chair height. She alleged that co-workers say “shit” and she stated that she wonders if these are “expressions of hate” and wonders about the “prejudice behind this activity”. She alleged that in September 2011, she saw printed material on the table where a shared printer sits. She alleged that the material “suggested that the third world war will begin from the Islamic Middle East countries with a large map of Iran at the middle of a page as a centre of problems in the area”. She alleged that the material had no relevance to the work of her unit, but that it remained there for a few days. She alleged that in October 2011, another ARO placed a “large picture of the deceased Libyan leader published in a newspaper on front of me during the 2 hours of our staff team meeting”. She alleged that at a meeting in September she said that she had no update to provide and that things were “status quo”. She alleged that someone who she identified by initials only, subsequently wrote on a whiteboard “Status Quo is Not Acceptable”. She also alleged that her ARO contract position was posted as a permanent position May 27, 2011 and that she has had to apply. She alleged that her new manager hinted that she may not get the posted position.

Summary Hearing

25At the summary hearing, the applicant was asked to explain what evidence she would rely upon to prove a link between the respondent’s alleged actions and the grounds of discrimination she cited. She submitted that none of the things she complains of have happened to anyone else and she is the only immigrant in the workplace. She alleged that the discrimination is very subtle and that every one else is given opportunities and respect. She alleged that she has had a “good record” everywhere else she worked and that the fact she is treated differently from her colleagues can only be due to discrimination because it cannot be due to her skills. She described herself as hard-working and alleged that even management had noted that she went “over and above”. She repeated the allegations from her Application and RFOs, saying that she would be treated differently if she were Caucasian and saying that she has been isolated, left at the end of speakers’ lists at meetings, and she alleged that the letter she received regarding her performance in December 2009 can only be directed at her because she is an immigrant and the manager was targeting her language skills as an attack on her character and an attempt to portray her as “less civilized”.

26Counsel for the union submitted that the only conclusion possible is that the applicant was treated differently because of her ethnic background and race. He submitted that there were comments made about her accent, but offered no indication of particulars or what evidence there was to support this allegation. He submitted that though she cannot show a “smoking gun”, there is no plausible explanation for the treatment she has allegedly received, other than discrimination.

27With regard to her allegations of reprisal, the applicant submitted that it was only after she made a complaint regarding discrimination that the employer indicated problems with her language skills. She also repeated her general allegations that there were jokes and attitudes which indicate racism, after she made a complaint, responsibilities were taken away and given to others, her son suffered negative consequences, she was personally invited to go to an information session regarding the voluntary severance program being offered by the city, her computer “burned” and she lost a good deal of information which was subsequently found elsewhere, other co-workers are supported at meetings, her new manager hinted that she took her Blackberry, she had a broken chair for over one year and she had a problem with her keyboard, but when she asked for an anti-glare screen nothing was done. She also submitted that the discipline she received was unwarranted and that she was told that her contract position might not be extended and it was ultimately posted.

28With regard to timeliness, the applicant submitted that she had tried to resolve issues with her managers by making a series of comments to them and by telling them that she felt isolated, but that nothing was done. She submitted that this shows her good faith. She submitted that the allegedly poor treatment she received was indicative of a poisoned environment and was ongoing, not isolated incidents.

29With regard to timeliness, counsel for the union submitted that the applicant had met with her supervisors in an attempt to resolve her concerns internally and that this is proof of good faith.

30Counsel for the union also submitted that there are grievances regarding harassment, the negative consequences experienced by her son, and something else about which he had no details. He submitted that the grievances do not cover “every single issue” raised in the Application, and he was not seeking deferral of the Application.

31In addition to relying on its Response to the Application, counsel for the respondent submitted that everything the respondent does is construed negatively. With regard to the fact the applicant has not received a permanent position, he submitted that she would have been “at the front of the line”, but that the job has not been given on a permanent basis to anyone, as the respondent’s Human Resources department has advised that they cannot post any position without approval of the City Manager, who is not currently approving any postings. With regard to the respondent’s voluntary separation package, he noted that it has been in the news, and that managers are responsible for bringing it up with employees, as the respondent wanted as many people as possible to take advantage of the offer. With regard to the picture of Ghadafi in the newspaper, he submits that there is nothing suspect about someone taking a newspaper into a meeting with them. With regard to the written material on the printer table, he alleged that she was away on vacation and saw it when she returned from holiday and that she has not indicated how she would prove it was meant for her. He also submitted that the Tribunal does not have jurisdiction to deal with unfairness that is not Code-related and that the applicant has offered nothing substantive to indicate she can establish that any differential treatment was due to discrimination contrary to the Code.

32With regard to allegations about the respondent’s treatment of the applicant’s son, he alleged that the applicant’s son has a different last name than she has and that the respondent did not even know they were related.

33With regard to reprisal, counsel submitted that the earliest date the applicant could possibly allege reprisal is February 2010 as that is when she approached her General Manager. He submitted that she has not indicated that she was treated any differently after that date than she was treated prior to that date. He submitted that with regard to her allegations about her acting position, the worst that could happen to her is a return to her home position and that contrary to what she alleged, this would not be unusual.

34With regard to the question of timeliness, counsel for the respondent submitted that an internal complaint does not indicate good faith and the Tribunal’s jurisprudence does not accept using these kinds of internal measures as adequate to relieve against time limits. Further, he alleged that the applicant’s managers deny that she ever complained to them about discrimination. He allowed that in February 2010, she “may have discussed systemic discrimination”. He reiterated the respondent’s position as stated in their Response, submitting that there were no real particulars given in the Application, noting that she complained, for example, about people not making eye contact or saying hello in the morning. He submitted that there is no evidence that these are linked to the grounds she alleged, and he submitted that people interrupting each other at meetings is simply part of the dynamics of a meeting. He submitted that there is no evidence of anything of a continuing nature. He submitted that no allegations prior to July, 2009, one year prior to the filing of the Application, should be considered. He submitted that permitting the applicant to go back farther in time would prejudice the respondent, especially given the lack of particulars provided.

Request to Intervene

35The union’s Request to intervene was opposed by the respondent at this time. The respondent agreed, however, that there were no exceptional circumstances in this case which would support a deviation from the Tribunal’s normal practice of granting intervenor status to the union.

36The applicant supported the request to intervene.

37In accordance with Tribunal jurisprudence, the Request to intervene is granted. The extent of the union’s role and participation in any hearing into the merits of this Application will be determined by the Vice-chair or Member hearing the matter at that time.

Timeliness

38The Code makes provisions with respect to timeliness at s. 34 which 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.

39In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

40Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

41In her Application, the applicant makes allegations which date back to 2001. The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. I find that the allegations relating to alleged events over one year prior to June 18, 2010 are untimely, pursuant to s. 34 of the Code for the reasons below.

42I do not find that the applicant’s allegations from 2001 can be termed a “series of events”, given the break of over one year between alleged event. She has indicated that in 2007 and 2008, things improved with a good manager, but that with the arrival of a new manager in January 2009, things deteriorated again.

43The applicant submitted that in trying to speak to her managers over the years, she has shown good faith. I do not agree. The respondent disagrees with the applicant’s assertion that she attempted to speak with her managers regarding discrimination, and the applicant herself simply asserted that she made comments to her managers regarding the fact that she was feeling isolated in the workplace. The applicant says that she formed the opinion she was being discriminated against almost ten years ago, and yet she appears not to have made serious efforts to claim or enforce her rights under the Code prior to February 2010.

44Efforts to pursue one’s rights without filing an application pursuant to the Code have not, without more, been found by the Tribunal to justify a waiver of the one year time limit. See Kelly v. Culturelink Settlement Services, 2010 HRTO 508; Belamine v. Laurentian University of Sudbury 2010 HRTO 1407.

45As I do not find that the delay in filing her Application has been incurred in good faith, it is not necessary to consider the question of prejudice to the respondent.

46Accordingly, only those allegations relating to events in the period of one year prior to June 18, 2010, are timely. The allegations relating to the period before June 18, 2009 are dismissed as untimely.

No Reasonable Prospect of Success

Grounds of race, ethnic origin, place of origin

47The applicant has made bald assertions of discrimination on the basis of race, ethnic origin and place of origin. In the opportunity afforded to her in the summary hearing, with one exception, she was not able to point to evidence to establish that the respondent’s alleged actions could be found to be related to the grounds of race, ethnic origin or place of origin.

48Examining the allegations which are timely, it is clear that the applicant has interpreted many events at the workplace as having been directed at her, and as having been directed at her for reasons which are discriminatory on the basis of race, ethnic origin and place of origin. In many instances, on the basis of her Application, RFOs and her submissions at the summary hearing, it is not likely that she would even be able to establish that certain actions were directed at her: for example, someone yawning at a meeting, closing doors, not making eye contact, having her manager increase the involvement of a co-worker in the work of the applicant’s unit, having her manager send out an email and obtain a lock on her door after having found her Blackberry, someone writing that the status quo was “not acceptable”, people saying “shit” at work, someone bringing a newspaper into a meeting, or printed material regarding the Middle East being left on a printer table (or evidence which could lead to a finding that a reasonable employer should conclude that she would be offended by such material).

49In other instances, though she has described things which happened to her, she has been unable to point to evidence linking the alleged events with discrimination on the basis of race, ethnic origin or place of origin. For example, she has complained of not being allowed to answer a question posed by the General Manager and having a co-worker and her new manager “jump in” with an answer in mid-September, 2009, being confronted or embarrassed at meetings, being told not to visit someone at the hospital (though being asked to take magazines to someone else), having someone from a community agency say she wanted to cough in her face, a lack of recognition for her work efforts, having work, including committee work reassigned, confusion regarding the basis on which she would be attending an out of town conference and a lack of communication with her new manager or being told about city-wide offer of a voluntary severance package.

50Generally, the applicant has alleged that she is the only immigrant in her area and that her difficulties cannot relate to performance issues, as managers have recognized her for going “above and beyond” what is required of her. In essence, she has simply made bald assertions of discrimination which appear to be based upon suspicions. The Tribunal does not have the authority to deal with all claims of unfairness or disputes between parties.

51While it is true that a “smoking gun” is not required to establish discrimination, there must be some evidence which demonstrates a link with a ground under the Code. In Preddie v. St. Elizabeth Health Care 2011 HRTO 2098 at paragraph 25, the Tribunal stated:

I accept the argument of applicant’s counsel that discrimination based on race and colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to the hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground. I cannot find, based on the Application and the submissions of the applicant and her counsel, that there is a reasonable prospect that the applicant can prove that she was discriminated against by the respondents based on her race and colour.

52With one exception, the applicant has not been able to point to evidence which could support her allegations of discrimination on the basis of race, place of origin and ethnic origin.

53As the Tribunal stated in Villella v. Brampton (City) 2011 HRTO 1085 at paragraph 10:

The Code is not designed to remedy all instances of differential treatment, poor service or professional misconduct. The alleged treatment must be linked in a substantive way to a Code ground. The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondent’s action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.

54As the applicant has not been able to point to evidence linking the actions of the respondent to discrimination on the grounds of race, ethnic origin or place of origin, with the exception of the allegation noted in the paragraph immediately below, the Application with regard to allegations of discrimination on those grounds is dismissed as having no reasonable prospect of success.

55The applicant has also alleged that at a work meeting, a discussion occurred regarding wealthy immigrants misusing a government program and during which a co-worker noted her interest in the program. The respondent has offered a different version of that discussion. Without making any factual determination about how this discussion unfolded, if the applicant can establish her version, it cannot be said that she has no reasonable prospect of success in establishing discrimination on the basis of race, ethnic origin or place of origin with respect to this allegation.

Reprisal

56The Code protection against reprisal is found at section 8:

Every person has a right to claim and enforce his rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

57Though the applicant said she complained to the new manager in November 2009, she has also indicated that prior to her Application, she made comments to her managers and told them she felt isolated. The applicant’s allegations do not indicate that she attempted to claim or enforce her rights under the Code prior to February 2010. The parties differ with regard to the nature of the discussion between the General Manager and the applicant in February 2010, though the respondent conceded that the applicant “may have” discussed “systemic discrimination”. Without determining the exact nature of the applicant’s complaint in February 2010, at this point, for the purposes of the allegations of reprisal, I refer to the complaint of February 2010 as the date relevant to determining whether these allegations should be dismissed as having no reasonable prospect of success.

58The applicant has alleged that after she complained about discrimination, the discrimination she experienced intensified. In reviewing her allegations regarding what she refers to as isolation, re-assignment of work duties and limits being placed on duties and committees assigned to her, as well as poor communication with her new manager and difficulties in meetings, I do not find that the allegations she makes prior to February 2010 and her allegations after February 2010 are different in any significant way. Accordingly, I find that the applicant has no reasonable prospect of success in establishing that these alleged actions of the respondent were reprisal contrary to the Code.

59The applicant has alleged that her new manager sent her a “reprisal letter” in December 2009. I do not find that the letter regarding performance in December 2009 can be considered to be a letter sent in reprisal, as it pre-dates the applicant’s complaint to the General Manager and therefore I find that the applicant has no reasonable prospect of success in establishing that his letter was sent by way of reprisal contrary to the Code.

60The applicant alleged that the fact she was told about the renewal of her contract for the first time only after she had filed her Application and further that it was only after filing the Application that she was presented with the very real prospect of returning to her own position. The allegation as stated in the November 10, 2011 RFO regarding the posting of the ARO position can be understood as essentially the same as allegation that she was being treated differently by not being automatically awarded the acting position of ARO and instead having her contract extended. The respondent alleged that it is not unusual for employees to have to return to their home position after a time in an acting position and that in any event, they have not been permitted to post any new positions. Without making a finding regarding these two versions, if the applicant can establish her version of events, it cannot be said that she has no reasonable prospect of success in establishing discrimination in the form of a reprisal.

61The applicant alleged that the disciplinary letter she received in October 2010 was reprisal contrary to the Code. The respondent alleged that it had just cause to discipline her. I note that there is no indication from either party that the applicant had ever been subject to discipline before. Without making a finding regarding the two views of the applicant’s discipline, if she can establish her version of events, it cannot be said that the applicant has no reasonable prospect of success in establishing discrimination in the form of reprisal.

Allegations relating to the applicant’s son

62The applicant did not contest the respondent’s assertion that her son has a different surname, though she was of the view that the respondent was aware of the familial relationship. Further, the applicant did not suggest that the alleged negative actions of the respondent were reprisals against her and the applicant has no reasonable prospect of success in proving that these allegations establish reprisal against her.

63The applicant has pointed to no evidence upon which she would rely to establish discrimination on the basis of association with a person identified by another ground protected under the Code, and the allegation that she has been discriminated against on this ground is dismissed as having no reasonable prospect of success.

Other

64At the summary hearing, the union indicated the union had filed grievances on the applicant’s behalf, and though he did not have the subject-matter of all those grievances in front of him, he stated that they did not deal with all of the allegations before the Tribunal and that the union was not seeking deferral. He advised that he could provide the necessary information.

65Now that the allegations to be considered by the Tribunal have been narrowed considerably, it may well be that there is significant overlap between what has been grieved and the questions before the Tribunal. It is appropriate to consider the question of deferral of this Application.

66After the summary hearing, on December 22, 2011, the applicant emailed the Tribunal advising that she had been waiting for the respondent’s submissions regarding her November 10, 2011 RFO and that she had not replied at the summary hearing to the comments made by the respondent’s counsel regarding the November 10, 2011 RFO, as she understood that she had “limited time to speak in the afternoon”. She wrote that she was “under the impression” that she would have the opportunity to reply in writing once she receives the respondent’s written submissions.

67The respondent’s counsel emailed the Tribunal on December 22, 2011, stating that the respondent had not responded to the November 10, 2011 RFO at the summary hearing, and that the applicant had been given ample time and opportunity to address her Application and her two RFOs. He also noted that the union had been given the opportunity to intervene, and had spoken on behalf of the applicant, though the respondent had objected. He also noted that the applicant was given the opportunity to reply to the respondent’s submissions. Finally, he noted that it is incorrect to state that the applicant’s time had been limited, as this had been such a long summary hearing that at one point in the afternoon, union counsel had to indicate that he had another engagement he had to attend.

68The applicant wrote to the Tribunal again on December 23, 2011, stating that she appreciated the time provided to her at the summary hearing. She also stated that at times during the summary hearing she could not hear clearly and was also “unable to fully understand the legal proceeding”. She stated that she did not “notice” that the respondent would not be providing written submissions and that with regard to the allegations contained in the November 10, 2011 RFO, she has “solid evidence to prove them”.

69The summary hearing in this matter was scheduled as a three hour teleconference in the morning, but proceeded for much longer, finishing later in the afternoon. At the outset, I explained to the parties the process which would be followed and the questions which would be considered at the summary hearing. Through the course of the summary hearing, I asked questions of the applicant to invite her to address the issues before me. The applicant participated fully in the summary hearing and there was no indication that she had not heard the proceedings properly. The applicant was given a full opportunity to address the issues stated in the CAD, namely, timeliness of her Application and the evidence, if any, she would be relying on to establish a link between the alleged actions of the respondent and the grounds of discrimination alleged.

70While the applicant has stated that she did not reply to the respondent’s submissions regarding her November 10, 2011 RFO and while the respondent stated that it did not address allegations made in her November 10, 2011 RFO, in its submissions at the summary hearing, the respondent addressed the question of the posting of the ARO position, the fact that someone spoke to the applicant about the City’s voluntary severance package, the fact that printed materials were left on a shared printer table, the fact that someone brought a newspaper into a meeting, and the applicant’s general allegations regarding isolation. The respondent also submitted that if the allegations contained in the November 10, 2011 RFO were found to have no reasonable prospect of success they should be dismissed, but if there was found to be the possibility of “something there”, the applicant should be given the opportunity to file a new Application regarding those allegations. In her reply submissions at the summary hearing, the applicant again addressed the allegation regarding having been told about the voluntary severance package, the posting of the ARO position and general allegations regarding isolation and re-assignment of duties.

71The applicant was given sufficient opportunity at the summary hearing to address the issues stated in the CAD. I note further that many of the allegations made in the November 10, 2011 RFO are re-statements of allegations made in the Application or in the previous RFO. In any event, given the findings above, no further submissions are needed regarding the allegations made in the November 10, 2011 RFO.

Directions

72But for the allegation related to the discussion at a workplace meeting on April 13, 2010, the Application as it relates to allegations of discrimination on the basis of race, ethnic origin and place of origin, is dismissed.

73But for the allegations related to the extension of the applicant’s contract for an acting ARO position and her allegations related to discipline in October 2010, the Application as it relates to allegations of discrimination on the basis of reprisal, is dismissed.

74The union is directed to provide to the Tribunal copies of the grievances filed on behalf of the applicant and information regarding their current stage.

75If any party wishes to make submissions with regard to the question of deferral of this Application, they must do so within fourteen days of this Interim Decision.

76I am not seized.