Tracey Beni v. Sarnia Police Services Board, 2012 HRTO 798

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracey Beni Applicant

-and-

Sarnia Police Services Board Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: April 19, 2012 Citation: 2012 HRTO 798 Indexed as: Beni v. Sarnia Police Service

APPEARANCES

Tracey Beni, Applicant ) Peter Mancini and Jayne Wogan, ) Representatives Sarnia Police Services Board ) Paula M. Rusak, Counsel

INTRODUCTION

1This Application was filed by the applicant, a police officer, on November 29, 2010, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and alleges discrimination in employment on the basis of disability, sex and reprisal. This Interim Decision follows a summary hearing.

The applicant’s allegations

2Attached to the Application is a lengthy narrative described as “Appendix ‘A’”, setting out the applicant’s allegations. In Appendix “A”, the applicant alleges, in particular, that she was not allowed to compete in a competition for promotion in July 2009, and that she was subsequently transferred to a civilian position on April 12, 2010. Appendix “A” also includes the following allegations:

In January 2008, the applicant’s supervisor, a Sergeant, retired and she was assigned the acting supervisor role until such time as a promotional competition could be conducted. During this time she reported directly to the Acting Chief.

In March 2008, she was advised by the Acting Chief that he would be assigning a Sergeant from another division to temporarily take over the supervisor’s position. She was told that the reason for the change was so that a proper evaluation could be conducted on her for the upcoming promotional opportunity. The Acting Chief explained that he needed to make the change to provide her with a fair opportunity in the promotional process and that there were other officers in the unit under her command that would be competing and there would be a conflict if she were involved in preparing performance evaluations for them. At the time, she accepted this as a logical explanation.

In April 2009, a Sergeant position became available on a platoon. Two male constables, who would also be participating in the upcoming competition, were assigned to share the role of Acting Sergeant. This put these two individuals in the same position of conflict. The applicant alleges that the only difference in the situation was gender, and that the two male officers had the advantage of being allowed to gain experience in the supervisor’s role, which would give them an edge for the promotional process. She alleges that these two officers were junior in seniority and experience to her.

The applicant explains that she has diabetes and was injured in an accident at work that resulted in a permanent disability, as documented by the WSIB, and that required accommodations for her re-entry to the workplace.

On May 20, 2009, the Chief issued a notice of promotion for the competition for the Sergeant’s position. Part of the process included a performance appraisal. The applicant alleges that her supervisor submitted a negative performance appraisal, thereby disqualifying her from further participation in the process.

The applicant met with her supervisor, expressed concerns and pointed out numerous inaccuracies. She alleges her supervisor made reference to her “circumstances” and referred to “light duties” due to a recurring back injury in her performance evaluation. He acknowledged the inaccuracies but refused to alter the appraisal. She alleges that his refusal to amend the appraisal and his failure to inform her of any dissatisfaction with her performance before the appraisal made her suspect his actions were designed to deny her an opportunity for promotion. She believes her supervisor subjected her to discrimination on the basis of disability, and alleges that on many occasions he referred to people with disabilities or workplace injuries as “sick, lame and lazy”. She believes that her supervisor did not believe she should be promoted because she was being accommodated as a result of her workplace injury.

The applicant submitted a grievance to an Inspector on July 25, 2009, outlining numerous inaccurate statements made by her supervisor. The grievance was dismissed. She followed the next step by submitting a response to the Chief, who responded in agreement with the Inspector on September 8, 2009.

The applicant alleges that, subsequent to filing her grievance, there was a significant amount of tension in the office and it was clear to her that her supervisor was angry with her for confronting him.

She alleges that, during the summer of 2009, she began to experience reprisals for her actions, and another constable told her that he was going to get her job because she was going to get moved out.

During the week of September 9, 2009, the applicant’s supervisor and the next officer in line for acting in the supervisor’s position were away. The applicant should have assumed the acting role, but this did not happen. She alleges this was a form of discipline for disagreeing with her supervisor.

Later in September 2009, the applicant had to attend a diabetic clinic at a hospital and informed her supervisor. She alleges that he telephoned her the next day and asked her questions about her personal medical information, stating he wanted to know what she had been doing at the hospital and if everything was alright.

In October 2009, the applicant learned that three officers were selected for promotion and a number of others, all male, were placed on a list for promotion. She alleges that two of the three promoted were less qualified than her.

On October 21, 2009, the applicant was advised by an Inspector that she was being transferred to Court Services as a court clerk in January 2010. She was absolutely shocked. She advised the Inspector that she was unable to do that job because of her restrictions as established by the WSIB. She told him that she had been told she would be staying in traffic long term, and that this transfer was disguised discipline for grieving her supervisor’s evaluation and disagreeing with him over the promotion. He advised her that he would be requiring that she complete a physical demands analysis in order to accommodate any restrictions.

The applicant alleges that the Inspector advised her that she was being transferred as she has been in her position for a long time, however, many male officers in positions for similar or longer time periods are not transferred, only the women. She alleges that, in her twenty year career with the respondent, there have never been any opportunities given to female officers for promotion, despite being qualified for available positions.

On November 12, 2009, the applicant received correspondence to take to her physician relating to the court clerk’s position. The duties were clearly civilian duties. Her doctor reviewed the job description. Due to her inability to sit for long periods of time, as established by the WSIB, her physician recommended that this position was not suitable for her and provided a note indicating she could return to her current position with her previously documented restrictions. She alleges that she was told that despite these facts the transfer was to take place.

On January 5, 2010, the applicant was told by her new supervisor that she was no longer allowed to be on call. This resulted in a loss of 7½ hours of pay every three weeks. Her normal work routine was slowly changed. Her responsibilities in the traffic branch included participating in a number of traffic related committees which provided additional flexibility in her routine and assisted in the management of her disability and restrictions. Over time she was ordered off of these committees and directed to do more traffic enforcement, which required more sitting in the car. Her pre-existing injury became exacerbated. She also had less control over meal times. In addition, the stress she was experiencing at work began to impact on her ability to control her diabetes. As a result she had to seek medical attention.

On March 25, 2010 she was advised that she would be transferred to the court clerk’s position on April 12, 2010, and on April 12 she reported for the position. The applicant essentially alleges that she was not accommodated in the court clerk position.

3The Application indicates that the last event occurred on June 16, 2010, when the applicant attended a return to work meeting and her modified duties were deemed to be acceptable by the WSIB, and the respondent accepted the WSIB’s position even though the applicant’s physician did not approve of the modified duties.

4In “Appendix ‘B’” the applicant describes how the events affected her. The Application also includes an “Appendix ‘C’” which is described as “Additional Information History and Background” and concerns the time period from 1989 to 2005.

The respondent’s position

5On January 10, 2011, the respondent filed a Request for Summary Hearing to have portions of the Application dismissed on the basis that there is no reasonable prospect that large portions of the Application are likely to succeed. The respondent also filed a Request for an Order During Proceedings to have large portions of the Application dismissed on the basis of delay and not establishing a prima facie case. The respondent also filed a limited Response.

6In its Response, the respondent submits that many of the allegations contained in Appendices “A”, “B” and “C” of the Application are untimely and are not within the Tribunal’s jurisdiction. The respondent takes the position that any and all allegations relating to discrimination based on sex and reprisal are not properly before the Tribunal. The respondent submits that what is timely is the allegation that the applicant was not properly accommodated in the transferred Constable position in Court Services, of which she was made aware in October 2009, and which took effect on April 12, 2010.

7In its Requests for Order and Summary Hearing the respondent reiterates that all of the allegations of discrimination based on the grounds of sex and reprisal are untimely and, even if believed, do not establish a prima facie case of discrimination. The respondent also submits that the allegations of discrimination based on disability concerning the applicant’s performance appraisal and grievance in July 2009 are untimely and do not establish a prima facie case. Again, the only issue that the respondent concedes is timely and properly before the Tribunal is the issue of whether, once transferred to Court Services, the applicant was properly accommodated.

SUMMARY HEARING

8In a Case Assessment Direction dated February 8, 2011, the Tribunal granted the respondent’s Request that a Summary Hearing be held to deal with the respondent’s arguments that parts of the Application should be dismissed as untimely, and that parts of the Application have no reasonable prospect of success for other reasons. The applicant was directed to deliver and file a written response to the respondent’s arguments.

Delay

9At the summary hearing, the respondent reiterated that it was not challenging the alleged failure to accommodate in 2010 on the basis of delay or summary hearing grounds. With respect to the issue of delay, the respondent submitted that all of the allegations in Appendix “C” of the Application should be dismissed as prejudicial.

10With respect to the allegations in Appendix “A” of the Application, the respondent submitted that the allegations of discrimination on the basis of sex, which begin in 2008 and crystalize in April 2009 when two male constables were assigned to share an Acting Sergeant position, are untimely. The respondent also submitted that the allegations of discrimination based on disability in relation to a poor performance appraisal in July 2009 are untimely. Lastly, with respect to delay, the respondent submitted that the reprisal allegations following the poor performance appraisal in 2009, and culminating when the applicant was told on October 21, 2009 that she would be transferred to Court Services, are untimely. The respondent also submitted that these issues are separate and discreet and do not constitute “a series of incidents” within the meaning of s. 34(1)(b) of the Code.

11The applicant, on the other hand, submitted that there are “a series of incidents” within the meaning of the Code. In so doing, the applicant submitted that she believes she had a poor evaluation because she is female and disabled. She also submitted that she was subjected to discrimination not only because she “went up against” her supervisor, but also because she is female and has a disability. She also submitted that she believes her transfer to Court Services was “part and parcel” of inequality between men and women and people with disabilities.

12The applicant submitted that the last act of discrimination in a series of events cited in the Application occurred on June 16, 2010, and that the Application was filed on November 29, 2010, within the requirements of the Code.

13Section 34 of the Code provides as follows:

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.

14The Tribunal will not deal with an application filed more than a year after the incident to which the Application relates, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

15In determining whether allegations constituted “a series of incidents” within the meaning of section 34(1)(b) of the Code, the Tribunal in Pakarian v. Chen, 2010 HRTO 457, stated as follows, at para. 25:

The dictionary definition of “series” is: “a number of things or events of the same class coming one after another in spatial or temporal succession” [Merriam-Webster online]. In applying the definition to the facts of this case, it is necessary to determine which events can be grouped together into a “class”, which for the purposes of an Application under the Code, must be defined in relation to discrimination. Therefore, the question to determine is whether the applicant has alleged a number of events relating to discrimination which can be said to have occurred one after another in temporal succession, and if so, when did the last such event occur.

16The Tribunal has also held that whether and to what extent an application alleges a “series of incidents” very much depends upon the specific facts of each case and the nature of the incidents which are alleged to form part of the series: See Henry v. Waterloo Catholic District School Board, 2010 HRTO 1715, at para. 8. In determining whether a number of incidents constitute a series for the purposes of s. 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues: See Thambipillai v. Toronto District School Board, 2011 HRTO 487.

The applicant’s removal from and the assignment of two male officers to acting supervisory positions in March 2008 and April 2009, respectively

17I am not satisfied that the events concerning the applicant’s removal from an acting supervisory position in March 2008, and the assignment of two male constables to share an acting supervisory position in April 2009, form a “series of incidents” with the applicant’s subsequent allegations. As I understand the applicant’s allegation, she “discovered” in April 2009 that she had been subjected to discrimination on the basis of sex in March 2008 when the Acting Chief changed her assignment. Although the applicant now asserts that her supervisor later subjected her to discrimination on the basis of sex, in addition to disability as particularly alleged in the Application, with respect to a performance appraisal in July 2009, these incidents do not appear to make up a pattern of conduct. Rather, it appears to me that the issue of whether the applicant’s performance appraisal conducted by her supervisor in July 2009 was discriminatory is a separate and discreet issue from the Acting Chief changing her assignment in March 2008. Considering the lack of sufficient similarity of the incidents and their timing, in my view, the allegation of discrimination with respect to the applicant’s re-assignment from an acting supervisory position is not sufficiently related to the subsequent allegations to form a series of incidents with them.

18The Application was not filed until November 29, 2010, approximately 2 years and 8 months after the March 2008 re-assignment, and 19 months after April 2009 when two male constables were assigned to acting supervisory positions. The applicant has provided no explanation of why she did not or could not have filed an Application with respect to this allegation of discrimination earlier than she did, and, in particular, within a year of April 2009. In the circumstances, the applicant has not established good faith within the meaning of section 34(2) of the Code with respect to the delay concerning this allegation. In the circumstances, the Tribunal does not have jurisdiction to proceed with this allegation and it is dismissed.

The remaining allegations

19In my view, the remaining allegations in Appendix “A” of the Application are sufficiently related and temporally connected to form a series of incidents within the meaning of s. 34(1) of the Code. The applicant alleges that she was subjected to discrimination in a promotion competition process in July 2009. In particular, she alleges that her supervisor subjected her to discrimination in a performance appraisal that was part of the competition process. From the applicant’s materials, it appears that the relevant phase of the performance appraisal was completed on July 23, 2009, and the applicant promptly filed a grievance on July 25, 2009 alleging discrimination. She alleges that, after filing her grievance, she began to experience reprisals in the summer of 2009. From the applicant’s materials, it appears that her grievance was dismissed on August 11, 2009, and she proceeded to the next step of the grievance process on August 31, 2009. She also alleges discrimination on the basis of sex with respect to the promotion decisions that she learned of in October 2009.

20With respect to reprisal, the applicant alleges, in particular, that during the week of September 9, 2009 she was not placed in an acting sergeant role. On October 21, 2009, the applicant was advised that she was being transferred to Court Services as a court clerk. While it is clear that the applicant viewed her transfer as a reprisal, she also alleges discrimination on the basis of sex with respect to her transfer, and that she was not accommodated in the court clerk position that she was transferred to.

21The respondent submits that a determination to transfer the applicant to Court Services was made in or around September 2009. While the respondent submits that the applicant’s reprisal allegation culminated or crystallized on October 21, 2009 when the applicant was told that she would be transferred to Court Services, I note that the applicant also alleges that on January 5, 2010, which is within a year of the filing of the Application, she was told that she was no longer allowed to be on call, resulting in a loss of 7½ hours pay every three weeks. I also note that, as set out in the respondent’s materials, beginning on November 12, 2009 the respondent proceeded to determine whether the position in Court Services was suitable for the applicant, or whether there were limitations or restrictions that would have to be considered. It appears that the respondent then had a number of communications with either the applicant or her case manager at WSIB concerning the position in Court Services, until sometime in early April 2010 when the respondent indicates it received confirmation from the WSIB that the job was suitable for the applicant.

22The applicant basically alleges that she was subjected to discrimination in a promotional process in July 2009, and that she filed a grievance alleging discrimination in the process, shortly after which she was subjected to reprisals and further discrimination, including a transfer to a position in Court Services in which she was not accommodated. In my view, these allegations are sufficiently related, having regard to their nature and the timing of the alleged events, to constitute a series of incidents within the meaning of section 34(1)(b) of the Code. As allegations that the applicant was not accommodated in the Court Services position are filed within one year of their occurrence, the allegations that form a series of incidents with these allegations are timely within the meaning of s. 34(1). These allegations are not dismissed on the basis of delay.

23With respect to Appendix “C”, while the applicant may not be seeking findings of discrimination based on the information provided therein, Appendix “C” nevertheless contains numerous allegations of discrimination going back to 1990. These allegations are clearly out of time, and I am not satisfied that any delay in bringing these allegations is incurred in good faith and that no prejudice would result to the respondents as a result of the delay. For clarity, the allegations in Appendix “C” are dismissed as untimely in light of s. 34(1) of the Code.

24The respondent did not provide submissions specific to Appendix “B”, wherein the applicant describes how the events affected her. It is not clear if anything set out in Appendix “B” constitutes allegations that are untimely.

Reasonable Prospect of Success

25Rules 19A.1 of the Tribunal’s Rules of Procedure, states as follows:

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.

26In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

27In the present case, the Tribunal’s Case Assessment Direction asked the parties to address the respondent’s arguments that parts of the Application have no reasonable prospect of success.

28The respondent submitted that there are allegations in the Application that, even if true, do not amount to a violation of the Code, and questioned how the applicant could establish a link to a Code ground. With respect to the allegations of discrimination on the basis of disability and reprisal, the respondent submitted that, in challenging her performance appraisal, the applicant used the term “discrimination”, but nowhere in her grievance letter did she provide any particulars of discrimination. The respondent submits that the applicant’s disagreement with the performance appraisal has nothing to do with raising or asserting rights under the Code. The respondent submitted that the first time the applicant told the respondent she had a human rights issue, and that she was pursuing it, was on October 21, 2009, which is the date that she alleges she was told that she was being transferred to Court Services.

29The applicant submitted that it would be premature to dismiss without allowing all of the facts.

30The Tribunal notes that, with her Application, the applicant provided what appears to be a copy of the July 2009 performance appraisal. With respect to the competency of “organizational awareness”, the applicant’s supervisor rated her as “does not meet” and provided comments. The comments include that, at times, the applicant “has struggled with accepting direction when it conflicts with her circumstances.” An example is provided from October 15, 2008. It is stated that the applicant was on “light duties” due to a reoccurring back injury. The Acting Sergeant position became available due to vacation. Both the applicant and another constable were qualified to fill the Acting Sergeant position. The other constable was assigned the acting duties as a result of the applicant’s inability to perform the full scope of the Sergeant responsibilities. The applicant was dissatisfied with this decision and felt she should have been assigned the Acting Sergeant position, even though the Police Service would have been adversely affected. Further, the applicant insisted during this time that she should be able to keep the traffic “on-call” phone, even though she was on light duties and could not attend accident scenes. She had to be directed to give the “on-call” phone to another constable during this time.

31In her subsequent grievance, the applicant alleges that she was discriminated against. In the grievance, the applicant questions her supervisor’s reference to her “circumstances” and states that during their review he was unable to explain what her circumstances were. She states, among other things, that her supervisor’s statement that she was on light duties because of a recurring back injury is absolutely false. She explains she was in an off-duty vehicle collision and suffered a chest injury. She needed to be on light duties for a couple of weeks. She states that the characterization of this as a recurring injury puts an unnecessary and unfair inference in the appraisal as to her personal medical history, and demonstrates a bias that her supervisor has expressed frequently in the past by referring to “the sick, lame and lazy.”

32At this stage of the proceeding, prior to having heard any evidence, it is not appropriate to make findings with respect to the applicant’s allegations or the respondent’s defence. With respect to her allegations of discrimination in a promotional process in July 2009 and her reprisal allegations, the applicant has satisfied me that she may be able to establish a link between the alleged events and Code grounds. The respondent’s request that these allegations be dismissed on the basis that they have no reasonable prospect of success or do not establish a prima facie case is dismissed.

33With respect to the respondent’s request that allegations purportedly being advanced on behalf of third parties pursuant to s. 34(5) of the Code be dismissed, the Tribunal simply notes that there is no indication that the Application has been filed on behalf of any third parties.

Conclusion

34The allegation in the Application concerning the applicant’s removal from an acting supervisory position in March 2008, and the assignment of two male constables to share an acting supervisory position in April 2009, is dismissed on the basis of delay. The allegations in Appendix “C” of the Applications are also dismissed on the basis of delay. The remaining aspects of the respondent’s Requests are dismissed.