Chappell v. Securitas Canada Limited, 2012 HRTO 874

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Chappell Applicant

• and-

Securitas Canada Limited and Toyota Motor Manufacturing Canada Inc. Respondents

INTERIM decision

Adjudicator: Douglas Sanderson Date: May 2, 2012 Citation: 2012 HRTO 874 Indexed as: Chappell v. Securitas Canada Limited

APPEARANCES

Heather Chappell, Applicant ) Self-represented Securitas Canada Limited, ) Daniel McDonald, Counsel Respondent ) Toyota Motor Manufacturing Canada ) Ted Kovacs, Counsel Inc, Respondent ) United Steelworkers of America, Local ) Shaheen Hirani, Counsel 9597, Respondent )

1This is an Application filed on May 4, 2011 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 because of sex and family status.

BACKGROUND

2The applicant was a Senior Fire Inspection Officer employed by the respondent Securitas Canada Limited (“Securitas”). Securitas placed the applicant on investigatory suspension on or about February 3, 2011, pending investigation into allegations that the applicant falsified inspection records regarding fire extinguishers at the respondent Toyota Motor Manufacturing Canada Inc.’s (“Toyota”) facility in Cambridge Ontario. Following the investigation, Securitas concluded that the allegations against the applicant were valid and Toyota exercised its right under its contract with Securitas to have the applicant removed from the facility. The respondent United Steelworkers of America, Local 9597 (the “Union”) grieved her removal, but was unable to have the applicant returned to work at the Toyota plant. Instead, Securitas and the Union agreed that the applicant could transfer to another location where Securitas provides services. On March 31, 2011, the applicant resigned rather than accept the transfer. On the same date, the applicant resigned her position on the executive board of the Union.

3The applicant alleges that the suspension on February 3, 2011 was one of many incidents of alleged discrimination and unfair treatment Securitas committed against her during her employment. She denies falsifying any records and asserts that she inspected the fire extinguishers in question, found they were in good working order and affixed new inspection tags to them. The first alleged incident occurred in December 1998. The applicant asserts the Union did not represent her properly regarding her removal from the Toyota facility and did not accommodate her properly regarding her breastfeeding needs for Union executive meetings in March 2010 and April 2011. The applicant asserts Toyota’s decision to remove her from the facility was discriminatory.

4By Case Assessment Direction (“CAD”) dated August 8, 2011, the Tribunal ordered a summary hearing to determine whether the Application should be dismissed because it has no reasonable prospect of success. In the CAD the Tribunal also directed the applicant to address the following issues: (i) the respondents’ arguments that many of the allegations are untimely; (ii) Toyota’s argument that there are no allegations that can reasonably link its actions to a prohibited ground in the Code; (iii) Securitas’s argument that there is no reasonable prospect that the site removal can be linked to a prohibited ground in the Code; (iv) the Union’s argument that the applicant does not allege discrimination against it within the meaning of the Code with the exception of the accommodation of breastfeeding allegations; and (v) the union’s argument that it is plain and obvious that its accommodation of breastfeeding was consistent with the Code. The summary hearing was held on January 9, 2012.

Timeliness

5Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are 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.

The Application was filed on May 4, 2011. Many of the incidents set out in the Application are alleged to have occurred more than one year before the filing date. I must determine if there were a series of incidents or whether the delay was incurred in good faith and, if so, whether a respondent would suffer substantial prejudice as a result of the delay.

6The Tribunal has held that to form a series of incidents 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. See Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433. Incidents separated by a gap in time of a year or more will generally not be considered a series. See Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

7To establish good faith, the Tribunal requires an applicant to establish a reasonable explanation for the delay. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25.

8The applicant submitted that she presented the full history of her workplace disputes with Securitas to show the pattern of harassment and discrimination she experienced. The Application indicates that she seeks damages regarding the respondents’ behaviour over her entire tenure with Securitas at the Toyota facility.

Securitas

9The incidents, the first of which is alleged to have occurred in December 1998, include allegations of pregnancy related discrimination, failure to accommodate pregnancy related restrictions, failure to accommodate breastfeeding, violations of the Employment Standards Act, failure to investigate allegations of sexual harassment by a co-worker occurring outside of work, a miscarriage caused by workplace stress and privacy breaches. While there is some overlap, the Securitas personnel involved in the alleged incidents are not consistent. Many of the incidents occurred more than one year apart and often relate to different issues. For example, the latest of the untimely allegations, regarding accommodation of breastfeeding in February and March 2009, has no connection to the first timely allegation, regarding unwelcome comments by a co-worker allegedly uttered more than a year later in September 2010. Consequently, the incidents do not share a sufficient factual nexus to conclude they form a series.

10The applicant is evidently not reluctant to assert her rights and successfully grieved or negotiated acceptable outcomes with the help of the Union regarding several of the untimely incidents. It is clear that the applicant believed Securitas’ actions were wrong and either took no action or chose to deal with her disputes using the grievance procedure established in the collective agreement between Securitas and the Union. In the circumstances, I cannot conclude that the delay incurred regarding the incidents occurring before May 4, 2010 was incurred in good faith. I am also mindful of Securitas’ concern that allowing the applicant to proceed with the untimely allegations would result in re-litigation of disputes that were settled years ago. The allegations regarding incidents occurring before May 4, 2010 are dismissed.

The Union

11In the Application, the applicant sets out two incidents regarding breastfeeding, the first of which occurred in March 2010 and is therefore untimely. The applicant was to attend a union executive meeting in Hamilton and requested a double bed in her hotel room in order that her parents could accompany her to babysit her son, who was exclusively breastfeeding at the time. The Union did not initially provide a positive response and the applicant chose not to attend the meeting. She complained to a senior member of the Union and was informed that future meetings of the local executive would be held in Cambridge, until the applicant was no longer exclusively breastfeeding. This arrangement met the applicant’s needs. The second incident was a Union executive meeting scheduled in April 2011 in Ottawa. The location conflicted with her ongoing breastfeeding needs. The applicant did not actually request accommodation regarding the April 2011 meeting and would not have attended the meeting because she resigned her position on the Union executive before the meeting was to occur. The Union’s un-contradicted position was that the meeting did not occur as scheduled. Consequently, I find that as the incidents occurred slightly more than a year apart and are factually distinct they do not form part of a series. As well, I do not see how the planned April 2011 meeting can be considered an incident, since it did not occur. Also, as is discussed in more detail below, I find that the allegation regarding the April 2011 meeting has no reasonable prospect of success. In my view, an incident regarding which the applicant’s allegations have no reasonable prospect of success cannot form part of a series of incidents. Consequently, I find the applicant’s allegations regarding breastfeeding do not amount to a series of incidents under section 34(1)(b) of the Code.

12The applicant presented March 2010 meeting as part of the history regarding her other – timely – allegation against the Union regarding breastfeeding. The applicant disagreed with the Union’s approach to her desire to breastfeed her son, but chose to pursue her concerns within the Union rather than file an Application to the Tribunal and achieved an acceptable resolution. In these circumstances, the applicant had no reason to complain to the Tribunal. In my view, the applicant’s choice to pursue the matter (successfully) within the Union does not amount to a good faith explanation for the delay under the Tribunal’s jurisprudence. Accordingly, the allegation regarding the March 2010 meeting is dismissed for delay.

REASONABLE PROSPECT OF SUCCESS

13The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

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.

SUBMISSIONS

14In response to the argument that her Application had no reasonable prospect of success, the applicant pointed to the history of alleged discrimination and harassment by Securitas during the course of her employment. The applicant also disputed the conclusions of the investigation, i.e., that she failed in her duties as a Fire Prevention Inspector. In any event, she submitted that her alleged transgression was far less significant than those of other employees removed from Toyota who were alleged to have photocopied records to avoid physical checks or falsified fire audit safety checks to conceal their location. The applicant also pointed to evidence that male employees were guilty of very serious neglect of their duties (failing to provide CPR and defibrillation) or made significant errors (starting a fire that caused production to be shut down), but were neither disciplined by Securitas nor subject to removal by Toyota. In fact, the employee who allegedly started the fire became the applicant’s supervisor. While Toyota was not her employer, she worked closely with Toyota employees, took direction from Toyota personnel and received training from Toyota. In her Reply, she submitted that she had a “working relationship” with Toyota, as well as Securitas. Consequently, she submitted Toyota should not have simply accepted the results of Securitas’ investigation without considering whether the investigation was tainted by improper motives. The overall thrust of the applicant’s submissions was that Securitas wanted her out of the workplace and either trumped up or exaggerated allegations of improper behaviour. Toyota was complicit with the scheme because it relied on the allegations to remove her from the facility, despite a history of ignoring more significant misconduct or errors by male employees.

15The applicant submitted that the Union did not represent her adequately regarding the investigatory suspension and her removal from the facility at Toyota’s insistence and did not properly accommodate her breastfeeding needs.

16Securitas submitted that its investigation of the applicant’s conduct was appropriate and the removal of the applicant from the Toyota facility was consistent with similar cases in the past. In any event the applicant did not point to evidence that would connect Securitas’ actions to a prohibited ground of discrimination. Securitas submitted that, in the Application, the applicant pointed to her union involvement and participation in the Joint Health and Safety Committee as Securitas’ motive for mistreating her. Securitas submitted that neither of these activities are prohibited grounds of discrimination under the Code.

17Toyota submitted that it merely exercised its right to have the applicant removed from its facility when Securitas informed it that she had not conducted herself properly in the inspection of fire extinguishers. Toyota is not the applicant’s employer and had no reason to suspect the bona fides of Securitas’ report. The applicant provided no evidence linking Toyota’s decision to a prohibited ground of discrimination.

18The Union noted that the applicant was unhappy with the settlement reached regarding her removal from the Toyota facility and with how the Union conducted the negotiations leading to the settlement. The Union submitted, however, that the applicant pointed to no evidence that would connect the Union’s actions to a prohibited ground of discrimination. Regarding the breastfeeding allegations, the Union noted that it addressed her concerns in March 2010 and the applicant did not request accommodation regarding the Union executive meeting planned for April 2011 in Ottawa by indicating that she continued to breastfeed her son. The Union noted that, in any event, the meeting did not take place as scheduled and the applicant was no longer a member of the Union executive in April 2011.

ANALYSIS AND DECISION

19Section 5 of the Code states as follows:

5(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.

20Toyota has submitted that the Tribunal has no jurisdiction to consider the Application against it because the applicant is not, and never was, Toyota’s employee. However closely the applicant may have worked with Toyota personnel, it submits there is no dispute that Toyota was not her employer.

21Section 5 of the Code, however, prohibits discrimination “with respect to employment” and there is no language limiting the prohibition to employment relationships. The Tribunal has considered the phrase “with respect to” in the context of the prohibition of discrimination “with respect to services” in section 1 of the Code. See: Contini v. Rainbow District School Board, 2011 HRTO 1340 and Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056. In those cases, the Tribunal noted that the Supreme Court of Canada, in Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, at paragraph 26, and Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at page 39, interpreted the similar term “in respect of” and found that it is a broad expression intended to convey a connection between two related subject matters. Given the expansive, liberal and purposive approach to interpreting the Code the Tribunal found that the words “with respect to” should also be broadly interpreted. I agree with this analysis, which in my view applies equally to section 5. Accordingly, I find that the protections afforded by section 5 are not limited solely to incidents arising within employment relationships. Toyota did not have a formal employment relationship with the applicant, but because of the nature of its contract with Securitas, it had the ability to fundamentally affect the terms and conditions of her employment. In my view, Toyota’s decision to have the applicant removed from its facility was clearly connected to and had significant repercussions upon her employment and was therefore “with respect to employment” under section 5 of the Code.

22The Tribunal also takes a purposive, functional approach to determining whether there is “employment” within the meaning of s. 5 of the Code and has found that equal treatment with respect to employment without discrimination includes more than the traditional employer-employee relationships. See: Szabo v. Poley, 2007 HRTO 37 and Payne v. Otsuka Pharmaceuticals Co Ltd. (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 (Ont. Bd. Inq). The applicant pointed to evidence that she worked at the Toyota facility, took direction from Toyota personnel, received training from Toyota and was subject to removal from the facility upon Toyota’s request. In these circumstances, this is not a basis on which to dismiss the Application for no reasonable prospect of success.

23At the summary hearing stage, an applicant is required to point to evidence that she has or is reasonably available to her that could show a link between the respondents’ actions and the alleged prohibited grounds of discrimination. The applicant is required only to describe what her evidence would be and the Tribunal generally does not evaluate or weigh evidence.

Securitas and Toyota

24The applicant pointed to evidence that the reaction from Securitas and Toyota to her misconduct (which she denies) was disproportionate compared to the apparent lack of disciplinary sanction for male co-workers who allegedly committed more severe transgressions (failure to perform CPR and starting a fire). In my view, this alleged differential treatment, if accepted at a merits hearing, would link Securitas’ and Toyota’s actions to Code grounds, i.e., sex. Securitas and Toyota have not yet responded regarding these incidents of alleged differential treatment and I am mindful that any information regarding any investigation or their respective reactions to them is in their possession at this point in the proceeding. Consequently, I cannot find that the Application has no reasonable prospect of success as against Securitas and Toyota. Of course, the determination that the Application can continue is not an indication that it will succeed, but simply that a merits hearing is needed to decide the matter.

The Union

25The Application indicates the applicant believed the Union did not represent her properly on a number of occasions. The only timely allegation of inadequate representation related to the grievance filed regarding Securitas’ investigation and her removal from the Toyota facility. The applicant was unhappy with the settlement negotiated by the Union, but pointed to no evidence that would connect the Union’s actions to a prohibited ground of discrimination. Inadequate representation by a union is not, in and of itself, a violation of the Code. Rather, a claim that a union violated the Code must be based on an assertion of differential treatment because of a prohibited ground of discrimination (See: Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996).

26The applicant’s timely allegation regarding breastfeeding was in connection with a Union executive meeting scheduled to be held in Ottawa in April 2011. The applicant was apparently aware of the location of the event in January 2011. The location was problematic for her because she continued to breastfeed her son, but she did not raise this concern with the Union and seems to have taken for granted that Union personnel were aware that she continued to breastfeed.

27The search for accommodation is a multi-party endeavour and each party has responsibilities to facilitate the process. See, for example, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. An applicant must make his or her need for accommodation known, collaborate in the search for accommodation and accept reasonable proposals. In this case, the applicant pointed to no evidence that suggested she made an effort to make the Union aware that the location of the meeting would conflict with her breastfeeding plans. The applicant appears to assume that the Union was aware that she continued to breastfeed, although the issue last arose in March 2010. In these circumstances, the evidence the applicant has or that is reasonably available to her cannot in my view establish that the Union knew or ought to have known that the applicant required breastfeeding related accommodation. The issue of accommodation became moot when the applicant resigned her position on the Union executive. The applicant also pointed to no evidence that would contradict the Union’s assertion that the meeting in Ottawa was postponed.

28In the circumstances, I find the Application, as against the Union, has no reasonable prospect of success. The Union shall file a Request for Order during Proceedings within 14 days of the date of this decision should it wish to remain involved in the Application as an intervenor.

ORDER

29The Tribunal makes the following orders:

a. The Application, as against the Union is dismissed. The style of cause will be amended accordingly.

b. The Application, as against Securitas and Toyota shall continue.

c. The incidents in the Application alleged to have occurred prior to May 4, 2010 are dismissed. The hearing shall deal only with incidents alleged to have occurred within the statutory time limit.

30The Application shall be returned to the Registrar’s Office for processing.

Dated at Toronto, this 2^nd day of May, 2012.

“Signed by”

__________________________________

Douglas Sanderson

Vice-chair