HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carla Borba
Applicant
- and-
Toronto Transit Commission
Respondent
decision
Adjudicator: Brian Cook
Indexed as: Borba v. Toronto Transit Commission
APPEARANCES
Carla Borba, Applicant ) Harry Kopyto, Para-legal
Toronto Transit Commission, Respondent ) Lucy Siraco, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment.
2The Application was filed on January 26, 2011. In completing the Application, the applicant marked reprisal as the only ground of alleged discrimination. At the time the applicant was not represented. The Tribunal’s initial review of the Application indicated that it might not have been filed within one year of the last incident of alleged discrimination in accordance with section 34 of the Code. The Tribunal issued a Notice of Intent to Dismiss inviting the applicant to make submissions on the Notice of Intent to Dismiss.
3The applicant made submissions and stated that the last incident of alleged discrimination occurred in November 2010, which was a few months before the Application was filed. The Tribunal issued Interim Decision 2011 HRTO 781, which found that the Application would not be dismissed at that time for delay, and that it would be served on the respondent. The Interim Decision noted that the issue of delay could be raised again later in the proceedings.
4The Interim Decision noted that the Application identified only reprisal as the alleged ground of discrimination. The applicant was directed to file a statement indicating the specific Code grounds if any, that relate to her allegations of unfair treatment and reprisal.
5The applicant filed a statement and the Tribunal issued a second Interim Decision, 2011 HRTO 963, which found, at paragraphs 3-4:
The applicant filed written submissions on May 4, 2011 indicating that her allegations of reprisal relate to the fact that she previously participated in an internal human rights proceeding and complained about harassment. The applicant alleges that the respondent retaliated by failing to investigate her concerns. The applicant references “accommodation benefits”, harassment and discipline because of her complaints. In her narrative, the applicant also alleges that the respondent refused to pay her sick benefits and subjected her to unfair discipline for complaining.
The Tribunal will continue to process the Application and the respondent must file a Response. I find that the respondent has sufficient information at this time to file a Response to the Application. The applicant alleges she was subjected to reprisal and her allegations are set out in various points of her narrative and summarized in her May 4, 2011 submissions. Based on these submissions and the Application, it appears that the applicant’s allegations pertain to the fact that she made a complaint to the respondent’s (the employer) internal human rights unit regarding disparaging remarks and harassment. The applicant is alleging unfair treatment with respect to sick benefits and disciplinary reprisal.
6The respondent filed a detailed Response. The parties participated in mediation at the Tribunal but the Application was not resolved.
7The Tribunal issued a Case Assessment Direction dated November 8, 2011, directing that a summary hearing be held. In 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 thereof will succeed. The summary hearing process 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.
8In 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.
9Prior to the summary hearing, the applicant retained Mr. Kopyto to represent her. On December 15, 2011, Mr. Kopyto forwarded a Request for an Order During Proceedings asking that the Application be amended to include allegations of discrimination on the grounds of disability, sex, and age. The respondent filed a Response to the Request for an Order During Proceedings, opposing the Request.
10The Tribunal issued a second Case Assessment Direction, dated January 26, 2012, which directed that the applicant’s Request for an Order During Proceedings would be dealt with at the summary hearing.
11Both parties filed extensive written submissions and case law in advance of the summary hearing.
12The summary hearing was held by telephone conference call on March 23, 2012.
The summary hearing
13At the outset of the summary hearing, Mr. Kopyto asked that he be allowed to record the proceeding. He explained that he has a wrist disability that makes it difficult to take written notes. Mr. Kopyto stated that sole purpose of the recording would be an “aide de memoire” and that it would be used for no other purpose than to allow him to make submissions in the summary hearing and would be destroyed after the hearing.
14I noted that the Tribunal’s practice is to not allow recording of hearings except in exceptional circumstances. In this case, the request was based on a Code ground and Mr. Kopyto undertook to make no use of the recording beyond the summary hearing and to destroy it afterwards. I allowed the recording on this basis, but noted that it would have been preferable for Mr. Kopyto to give advance notice of the request.
15During the summary hearing, the applicant provided further information in respect of her allegations of reprisal and discrimination and harassment on the grounds of disability, sex, and age. Both parties made submissions on whether the Application should be amended to include the grounds of disability, age, and sex, whether the allegations were brought to the Tribunal’s attention in time, and whether there is no reasonable prospect that some or all of them could succeed.
The alleged events in the period from April 2008 to September 2009
16The applicant was employed as a bus driver with the respondent and started her employment in December 2006. The applicant outlined a series of incidents that she feels infringed her Code-protected rights.
17The first alleged incident occurred in April 2008. After a verbal altercation with a male co-worker, the co-worker allegedly called the applicant “a bitch”.
18On August 28, 2008, the applicant was experiencing back pain. She stopped her bus at the Jane subway station and got out to rest her back. The bus that was behind her on the route stopped behind her bus. The male operator approached the applicant and a verbal altercation ensued. The applicant made a complaint about the altercation and the respondent conducted an investigation. The applicant alleges that the investigation was discriminatory. She alleges that she was not taken seriously because of her age, which at the time was about 30, and because of her sex. She alleges that the respondent’s male investigator asked her “how would you feel about apologizing to a man”. She took this to mean that it would not be appropriate for the male driver to apologize to her for the incident because he is male and she is female.
19According to documents filed by the respondent regarding this incident, the applicant conceded that she swore at the male operator after he swore at her. Both employees were counseled about potentially unprofessional conduct. The applicant’s request that the issue be escalated was denied.
20On December 23, 2008, the applicant’s bus was involved in a collision with a vehicle driven by a member of the public. It appears that there were no injuries. A TTC investigator came to the scene. The applicant alleges that the investigator told the driver of the other vehicle that if the applicant were found to be at fault she would be suspended. The applicant alleges that this shows that she was not supported or respected and that this was because of her age and sex.
21On December 31, 2008, she was two minutes late to relieve another driver. He was upset and spoke loudly and pointed his finger in her face.
22On August 14, 2009, the applicant conducted a circle check of her bus at the start of her shift. She noticed a problem with the brakes. She went to a mechanic who looked at the bus and told her the problem was fixed. She felt that it could not have been fixed so quickly and felt that the mechanic had not taken her concerns seriously because of her age and sex.
23On or about September 10, 2009, the applicant arrived early at the stop where she was to be relieved by the next driver. There was some confusion about where the applicant’s bus was supposed to be. The other driver got angry and pointed his finger at her. He then jumped off the bus and said “you will regret this” and “look out”. The applicant felt harassed and intimidated.
24According to the respondent, the applicant also contacted the police about this incident. The police investigated and concluded that involvement by the police was not warranted.
25The applicant made a complaint to the respondent about this incident and there was an investigation. The other driver alleged that it was the applicant who had made threatening statements. The respondent concluded that the applicant’s allegations could not be substantiated. However, at the applicant’s request, a change in schedule was arranged so that she would not encounter the other driver.
26The applicant alleges that in October 2009 she was threatened by a supervisor who told her that she would be disciplined if she ever made another complaint. The respondent denies that this occurred.
27The alleged incidents discussed above all occurred more than one year before the Application was filed. As discussed further below, there is therefore a question of whether the Tribunal can hear the allegations.
The alleged events in May 2010 and after
28The applicant alleges that on May 19, 2010, she arrived at a relief point about 17 minutes early. She parked on the north side of the street and was expecting the relief bus to come to the same side of the street. Instead, the relief bus, which was also early, stopped on the south side. There was some delay before the confusion was resolved. The other driver blamed the applicant and told the passengers on the bus that she was responsible for the delay. During the discussion, the other driver called the applicant “stupid”.
29The applicant alleges that she complained about the other driver’s conduct but the respondent refused to do anything.
30On July 14, 2010, the applicant was running about six minutes late. She passed another bus on the same route. She stopped because it appeared that a customer with a bike wanted to take the bus although this was not correct. The female driver of the other bus caught up to her and talked to her rudely. A week later the same operator was driving unsafely in a way that impacted on the applicant. The applicant alleges that she made a formal complaint to the respondent’s Human Rights and Harassment Office about this, but the respondent again did nothing.
31The applicant alleges that on November 9, 2010, she was falsely accused of using her personal cell phone while on duty. The applicant alleges that this happened in reprisal for her having made the complaint to the respondent’s Human Rights and Harassment Office.
32The applicant alleges that shortly after the cell phone incident, she had an encounter with a member of the public who was taking photos of her. She felt threatened and called the police and TTC control. She alleges that the person at TTC control, who was a woman, did not take her complaints seriously and appeared to accuse the applicant of inappropriately responding to the situation.
33The applicant went off work shortly after this on a medical leave for “stress” and she has not returned to work.
34The applicant’s allegations of harassment were apparently raised in the context of a grievance. According to documents filed by the respondent, the applicant was sent a letter on January 11, 2011 advising her to complete a TTC Workplace Harassment and/or Discrimination complaint form if she wished to pursue the matter. The letter indicated that a copy of the form had been sent to the applicant on December 22, 2010 but had not been returned. It turned out that the applicant had moved and did not get the January 11, 2011 letter. A second letter was sent to the applicant’s new address on February 2, 2011. It appears that the applicant received this letter but did not return the form.
35Instead, she sent a letter to the respondent stating that she had filed this Application with the Tribunal.
Analysis and conclusions
36The sections of the Code that are relevant to this Decision are as follows:
- (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.
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
37In regard to section 34, an application must be filed within one year of the incident to which the application relates or within one year of the last event if there are a series of alleged events.
38In assessing whether allegations about events over a period of time constitute a “series of events” for the purpose of section 34, the Tribunal has found that there must be some connection between the incidents. For example, in Baisa v. Skills for Change, 2010 HRTO 1621, the Tribunal said (at paragraph 22):
In order to constitute a “series of incidents” within the meaning of s. 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues.
39On behalf of the applicant, Mr. Kopyto argues that all of the incidents described by the applicant are related and can be seen as a series of incidents. Mr. Kopyto submits that the incidents are connected because they all show that the applicant was discriminated against because of her sex, age, and/or disability. In Mr. Kopyto’s view, this discrimination is demonstrated because in each incident the applicant’s complaints were not treated seriously. In his submission, this happened because the applicant is female in a male-dominated workforce and because she is younger than most of the drivers.
40In my view, the alleged incidents in the period from April 2008 to September 2009 are not a series of incidents within the meaning of section 34 of the Code. The alleged incidents all involve unconnected encounters with associated verbal altercations with different co-workers. There is no suggestion that any of these discrete incidents were in any way associated with each other. The only alleged commonality is that in each case the respondent failed to accept the applicant’s version of what had occurred. Some of the incidents were not reported to the respondent and those that were reported were investigated, although not to the applicant’s satisfaction. In my view, this is not sufficient to link the discrete incidents to make a series of incidents for the purpose of section 34.
41The next issue under section 34 is whether there is a good faith explanation for the delay. The applicant suggests that she did not know at the time that she could make a complaint or raise human rights issues. However, it appears that the applicant did make complaints. It appears that she consulted with her union who would be expected to advise her of procedures that applied.
42The applicant’s explanation for why she should be allowed to amend the Application to include sex, age, and disability in addition to reprisal is relevant to the issue of whether there is a good faith explanation for the delay. Mr. Kopyto advised that the applicant had not originally identified these grounds because it was only after the applicant came to see him, almost a year after the Application was filed, that the applicant actually realized that she had experienced discrimination because of sex, age, and disability. He suggested that this is because the discrimination in this case was subtle and the applicant could not be expected to fully understand it until he explained it. On the other hand, the applicant advised that she consulted a lawyer before filing the Application and he advised her to list only the ground of reprisal.
43I am not satisfied that the applicant has provided a good faith explanation for the delay in filing the Application in respect of the incidents that occurred more than one year before the Application was filed. The allegations regarding alleged incidents in the period from April 2008 to September 2009 are dismissed on that basis.
44If these allegations were not dismissed because they were not filed in time, they would be dismissed because there is no reasonable prospect that the applicant could successfully show that they involved any infringement of her Code-protected rights.
45This is because the incidents in question involved co-workers with whom the applicant had work-related disputes. While the applicant suggests that the encounters would have gone differently if she was an older male, she has not provided any explanation for how she could prove this allegation. It appears that her allegations mostly relate to the way the respondent dealt with her complaints about the incidents that she brought to the respondent’s attention. However, it appears that when the respondent received a complaint, it investigated. It determined that further action was not warranted either because it would be impossible to verify what happened in an encounter that was not witnessed or because it was determined, on the basis of the applicant’s own account, that she was partly or equally to blame for what happened. The applicant did not raise human rights issues in any of the complaints that the applicant made in the period before 2010.
The remaining allegations
46There are three incidents that the applicant alleges were discriminatory and that occurred within one year of when the Application was filed.
47The first is the May 19, 2010 incident when the applicant was involved in a verbal altercation with another driver arising out of some confusion about where they were supposed to meet. The applicant alleges that the other driver disrespected her and called her stupid. She does not allege any comment or action that would suggest or show discrimination on the grounds of sex, age, or disability. She only believes that the encounter might have gone differently if she was older and male. The fact that an unpleasant workplace encounter involves people of different ages or sex does not mean that the encounter occurred because of age or sex. Apart from speculation, the applicant has not identified any evidence that would show discrimination or harassment because of age, sex, or disability in respect of the encounter itself.
48The second alleged incident within one year of the filing of the Application was the incident on July 14, 2010 involving a female driver. This appears to have been a brief encounter and it does not appear to have raised any Code-protected issues. Mr. Kopyto submits that the fact that the encounter involved a woman does not mean that there was not discrimination on the grounds of sex. While this may be true, there is no explanation offered for how the Tribunal could conclude that there was such discrimination in regard to this incident.
49The applicant alleges that the respondent discriminated against her in the way it dealt with her complaints about these incidents and that it then reprised against her in November 2010 by falsely accusing her of using her personal cell phone.
50Apart from her assertion that her complaints would have been dealt with differently if she was male or older, the applicant has not provided any indication that there is evidence that she would be able to rely on to prove her allegation in this regard.
51Mr. Kopyto submitted that there must have been discrimination in this case because the respondent’s workforce is predominantly male and most of the drivers are older than the applicant. In this view, systemic discrimination on the basis of sex and age is inevitable in such a workforce and so it is reasonable to suppose that it occurred in this case.
52It is not clear how Mr. Kopyto proposes to prove his theories of systemic discrimination in the respondent’s workforce. Even if this was provable, it does not follow that the applicant in this case experienced harassment or discrimination contrary to the Code.
53The applicant suggests that the respondent did not properly investigate her complaints. An employer has a general duty to conduct a reasonable investigation of complaints by an employee that her Code-protected rights have been infringed during her employment. However, in this case, it seems that while the applicant made a number of complaints about co-workers, she never suggested at the time that she felt that the complaints involved an infringement of her Code-protected rights. As noted earlier, even at the time she filed the Application, the applicant had not identified Code-protected grounds for her allegations of unfair treatment. I do not see how the respondent could be expected to infer that the applicant might later come to realize that the incidents she complained of actually did involve allegations of an infringement of her Code-protected rights.
54In addition, it appears to me that the complaints that the applicant brought to the respondents attention were investigated in a reasonable way. In all cases the applicant and the other individual were interviewed. The applicant was given an opportunity to respond and the results of the investigation were provided to the applicant.
55When the applicant raised her complaints in a grievance and engaged the respondent’s human rights and harassment process, it appears that she failed to follow the process and provide the required information. She then abandoned that process in favour of filing this Application. While the applicant was obviously within her rights to do this, she cannot then blame the respondent for not continuing a process that she had abandoned and had not co-operated in.
56Mr. Kopyto suggests that by that time the applicant was disabled due to stress and that the respondent failed to take this into consideration. According to Mr. Kopyto, this shows that the respondent discriminated against the applicant on the basis of disability. However, it is not clear what Mr. Kopyto thinks the respondent should properly have done assuming it was aware of the nature of the applicant’s disability, and is not at all clear how an allegation of discrimination on the basis of disability could be proved.
57For all of these reasons, I am satisfied that the Application must be dismissed because there is no reasonable prospect that the allegations that are within the Tribunal’s jurisdiction will succeed.
58Given this finding it is not necessary to determine if the Application should be amended to include the grounds of sex, age and disability.
Order
59The Application is dismissed.
Dated at Toronto, this 16th day of April, 2012.
”signed by”__________
Brian Cook
Vice-chair