HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Guy Touchette
Applicant
-and-
Ottawa Catholic School Board
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Touchette v. Ottawa Catholic School Board
APPEARANCES
Jean-Guy Touchette, Applicant ) Wassim Garzouzi, Counsel
Ottawa Catholic School Board, Respondent ) Jennifer Birrell, Counsel
1This is an Application filed on March 18, 2011 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 discrimination in employment on the ground of disability, arising out of his work as a caretaker with the respondent.
2The Ottawa Catholic School Board (“the respondent” or “the Board”) has asked for early dismissal of the Application on the basis that it is untimely, and the Tribunal directed a conference call hearing to receive the submissions of the parties on the respondent’s request. In my Case Assessment Direction of June 27, 2011, I also directed the applicant to file particulars, as described below.
BACKGROUND
3The applicant states he has been employed as a caretaker with the Board since 2000. He is represented in the workplace by a union, UNITE HERE Local 272 (“the union”). The applicant injured himself at the workplace in June 2005, was off work for a period of time, and returned to work as a caretaker on night shift with certain medical restrictions in late 2006. In 2009, he applied for a position as head caretaker.
4Because of the applicant’s restrictions, the Board sought confirmation from the applicant’s doctor that he would be capable of performing the duties of head caretaker and requested a letter to that effect, referring the doctor to the applicant’s “permanent medical precautions” as well as a “Physical Demands Profile” produced by a consultant and describing in detail the demands of the job. The applicant’s doctor confirmed that he could perform the job.
5The applicant was awarded a position as head caretaker at an elementary school, on day shift, beginning in June 2009 and under a ninety working day probationary period. In August, he began to report to a new District Supervisor, Shawn O’Meara. On October 28, 2009, and following a meeting on the previous day involving the applicant, his union representative, and members of management, Mr. O’Meara issued a Letter of Concern expressing concerns with the applicant’s performance. The issues identified were: prioritization, scheduling tasks, professionalism, interpersonal actions, small repairs, and teachers’ requests. The letter warned that continued failure to meet the respondent’s standards could lead to discipline, extension of the probationary period or demotion.
6A Performance Appraisal conducted by Mr. O’Meara on November 17, 2009 indicated dissatisfaction with a number of areas of the applicant’s performance, although it did note some improvement since the Letter of Concern. A further appraisal conducted on the completion of the probationary period on December 31, 2009 repeated the same concerns and concluded by recommending that the applicant be returned to his previous position as a caretaker on night shift.
7A letter of January 4, 2010 confirms the Board’s decision to return the applicant to his previous position.
8The applicant alleges that Mr. O’Meara singled him out for performance deficiencies although the performance issues were directly linked to the Board’s failure to provide the applicant with required accommodation in the workplace. He states that his accommodation needs prevented him from being as efficient as the previous head caretaker, and that the Board knew this and consistently compared him to his predecessor. He states that the Board never factored in his permanent restrictions.
9Following his demotion, the applicant states that he consulted with his union as to possible recourse, but the union did not file a grievance on his behalf and told him that there was nothing he could do. He states that later in 2010, the union initiated formal and informal discussions with the Board about his demotion, although it was no longer in a position to file a grievance, with no resolve.
10Following the demotion, the applicant was assigned to work at a different school on night shift as a caretaker, under the direction of a head caretaker and a different District Supervisor from previously.
11In his Application, the applicant alleges that his demotion was discriminatory. He also alleges an “ongoing failure to accommodate”. The Application provided little detail about any discussions between the applicant and the Board about accommodation, when it was requested, the nature of the request, and the Board’s response. The applicant does state that he has attempted to resolve these matters without proceeding to litigation through direct discussions with the Board and negotiations between the union and the Board.
12In his Application, the applicant requests that he be returned to the position of head caretaker, with monetary compensation, and that the Tribunal direct the respondent to undergo training and adopt a policy on workplace accommodation of disabled employees.
13As indicated, the respondent requested that the Application be dismissed as untimely. It also raised a concern about the applicant’s allegation of “ongoing discrimination”, stating that they merely set out bald allegations of discrimination.
14Because of the lack of details about the alleged discrimination following the applicant’s demotion in January 2010, my Case Assessment Direction of June 27 directed the applicant to provide particulars of these allegations prior to the hearing. I directed him to provide “details of any communications or events that are said to constitute discriminatory conduct following January 2010, including the names of individuals involved and the dates of the occurrences.”
15The applicant filed a statement of particulars on November 16, 2011. I have reviewed the statement and although it identifies in some places the individuals whom the applicant alleges have been unresponsive to his requests for accommodation following January 2010, and makes reference to certain issues (the need for lighter equipment, being given landscaping duties including shovelling), it still describes the events in a fairly sweeping and imprecise manner. At the summary hearing, in response to the respondent’s submission about the lack of any dates in the particulars, counsel for the applicant stated that the events occurred “between January 2010 and March 2011”.
16In requesting that this Application be dismissed as untimely, the Board submits that the Application is about the demotion in January 2010. It submits that although “ongoing discrimination” is alleged, there are only bald allegations about matters apart from the demotion, which cannot be used to avoid the timelines under the Code.
17The applicant submits that the Application as a whole is about an ongoing refusal or failure to accommodate disabilities arising from a workplace injury.
DELAY
18Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
- (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.
19Under 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.
20As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.
21The applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. In Gagne v. Maximum Mining, 2010 HRTO 689, the Tribunal stated that “efforts to pursue one’s rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2).”
22Further, although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Thorogood v. International Brotherhood of Electrical Workers, Local 120, 2010 HRTO 786.
23The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “series of incidents” upon which this Application is based. In considering the meaning of the “last incident in a series”, the Tribunal has adopted the principle discussed in Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993, 236 O.A.C. 115 (ON S.C.D.C.), to the effect that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.
24Where an applicant asserts that there is a series of incidents, the last of which falls within a year of the application, that “last incident” must be an event upon which an allegation of a violation of the Code is based. An application is not made timely simply because there is some sort of interaction between an applicant and respondent sometime in the year before it is filed.
25The Tribunal also looks 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. In a case involving a number of job competitions, the Tribunal considered whether the events involved the same decision-makers, workplaces and positions. See Thambipillai v. Toronto District School Board, 2011 HRTO 487.
26The applicant submits that the events from June 2009 to the filing of the Application constitute a “series of incidents” for the purpose of section 34. The Application is about a failure to accommodate from June 2009 to March 2011. There are also additional incidents of discrimination following the filing of the Application. Each of the allegations about the events during the relevant period could, if proven, establish a breach of the Code. There is a nexus between the events because there is a common responsible party, the Board.
27Further, the applicant states, if there is any uncertainty about whether the events form part of a series of incidents, the applicant should be able to give his evidence at a hearing. Many of the details about the events will emerge at the hearing, through cross-examination. It is difficult for the applicant to be precise about certain matters, such as dates, because the allegations are based on conversation for which there are no written records.
28The applicant does not seek to rely on “good faith” under section 34(1), and provides no explanation for why he could not or did not seek to bring a human rights complaint about his demotion in January 2010 to the Tribunal earlier.
29I am not satisfied that the events leading up to the applicant’s demotion in January 2010 form part of a “series of incidents” with events following that demotion. Although it is alleged that all of this relates to a continuing refusal or failure to accommodate, it is clear that the applicant’s short-lived tenure as a head caretaker and then subsequent return to his previous position gave rise to a specific and discrete issue about the assessment of his performance by a named supervisor during that time and whether it was fair or discriminatory.
30This is not a case where it can be said that subsequent and timely acts of alleged discrimination shed new light on previous actions that were not seen as discriminatory at the time. The applicant viewed his demotion as wrong, and approached his union about filing a grievance. There is no reason he could not have filed an application with the Tribunal following the demotion if he believed it was discriminatory.
31Following his demotion, the applicant alleges that his new supervisors failed to recognize his need for accommodation in the workplace. The fact that the events all occurred under the umbrella of the same organizational respondent does not in itself lead to a conclusion that they must form a “series of incidents” within the meaning of section 34(1). In this case, following the demotion, the applicant worked at a new school, under new supervision. To the extent there is any detail given about the events that are said to be discriminatory following the demotion, they concern different people at a different work location than previously. To the extent that there is a lack of particularity about what actions or communications, on what dates, constitute the failure to accommodate, makes it difficult to assess how closely related the events are.
32I find therefore that the allegation that the applicant’s demotion in January 2010 cannot proceed. It is not part of a series of incidents which ended within a year of the date the Application was filed. The applicant has not suggested that there is any reasonable explanation for the delay in raising this issue with the Tribunal that would amount to good faith within the meaning of section 34(2).
LACK OF PARTICULARS
33Given that I have dismissed part of the Application, covering the events up to the applicant’s demotion in January 2010, there remains a question about the scope of the Application.
34The respondent submitted that the Tribunal should dismiss the entirety of the Application as the lack of any specificity about the dates on which any of the events occurred makes it impossible for there to be any finding that any of them are timely.
35Although I agree that there is a lack of particularity, I find that this does not lead to a conclusion that the whole Application is untimely. The Application asserts that following his demotion, the applicant sought and was refused necessary accommodation in his new position. As of the date it was filed, in March 2011, the Application asserts that the applicant was working without the necessary accommodations of his disabilities. At the hearing, counsel for the applicant stated that the ongoing failure to accommodate described in the further particulars occurred between January 2010 and March 2011.
36On the basis of the Application, the further particulars, and the submissions of counsel, I accept that the Application does raise timely allegations of discrimination. Given this, any deficiencies in the particulars do not by themselves warrant dismissal of the whole Application at this stage of the proceedings. Those deficiencies, however, do require further action on the part of the applicant, especially since this was raised as an issue, addressed in my Case Assessment Direction, and the further particulars filed are still deficient.
37I therefore direct that the applicant provide further particulars of the following allegations of discrimination found in the applicant’s submission of November 16, 2011:
The allegation in para. 19 that the applicant “has consistently approached his head caretaker, Bob Simser, to request lighter equipment” and the applicant was forced to purchase and use his own tools.
The allegation in para. 21 that the applicant “repeatedly informed his head caretaker or District Supervisor that he needed assistance” in performing additional duties, including lifting heavy tables in the cafeteria, and the applicant was “told that if he was unable to perform the tasks, he would be sent back to the evening shift.”
The allegation in para. 21 that when he was assigned landscaping duties, including shovelling, that exceeded his physical limitations, and asked for assistance, he was told that that “you could do it alone.”
The allegation in para. 23 that when he raised his physical restrictions with either his head caretaker or his district supervisor, he was threatened with a return to the night shifts.
38In providing further particulars the applicant must identify the specific requests for accommodation that he made, the reason for the accommodation requests, to whom they were made, when they were made, and the response by the individuals involved.
39In ordering these additional particulars, I recognize that the applicant may have some difficulty recalling the details of some oral conversations, such as the exact date on which they occurred. However, I am not convinced that he cannot provide better information than he has to date, in order that the respondents may respond to the allegations. I do not agree with the applicant’s suggestion that it is sufficient if the details emerge through the oral evidence at the hearing. One example of an area where the applicant must provide more information is in relation to his assertion that his move to a day shift resulted in additional requests for accommodation, which led in turn to threats to move him back to the evening shift. Correspondence between the parties indicated that the applicant’s temporary move to the day shift was effective May 31, 2011. At the hearing, applicant’s counsel indicated for the first time that it may have been as early as late 2010, and that the reference to “shovelling” was about snow shovelling; however he was unable to be more precise about the date. This assertion came as a surprise to the respondent.
40The above is an example of why I find it appropriate to direct the applicant to provide better particulars. It is not in the interests of justice nor of an orderly hearing to have important details left unspecified or shift over time.
41In sum, I dismiss the allegations about the applicant’s demotion as untimely. The Application may proceed on the allegations that the applicant has been improperly denied necessary accommodation in the workplace following his demotion. However, the applicant must provide further particulars as directed above, within three weeks of this decision. The respondent may file an amended response within three weeks of receipt of the further particulars and the applicant may file an amended reply within two weeks of his receipt of an amended response.
42I am not seized of this matter.
Dated at Toronto this 13th day of January, 2012.
”signed by”______________
Sherry Liang
Vice-chair