HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raj Pannu
Applicant
-and-
Peel District School Board and Elementary Teachers’ Federation of Ontario
Respondents
DECISION
Adjudicator: Sherry Liang
Indexed as: Pannu v. Peel District School Board
APPEARANCES
Raj Pannu, Applicant ) Self-represented
Peel District School Board, Respondent ) Roy C. Filion, Counsel
Elementary Teachers’ Federation of Ontario, )
Respondent ) Mark Wright, Counsel
1This is an Application filed on July 2, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2The applicant has been a teacher with the respondent Peel District School Board (the Board) since 1993. She is represented in her employment relations with the Board by the Elementary Teachers’ Federation of Ontario (the ETFO). Between October 1998 and May 2006, she was on an extended medical leave. She returned to work briefly for the end of the 2005/2006 school year, and then between September 2008 and February 2009 when she left the workplace again due to injury. The Application alleges discrimination in employment on the ground of disability, as well as reprisal.
3The respondents raised a number of objections in response to the Application. Among other things, the ETFO filed a Request for a Summary Hearing to which the applicant, despite being given the opportunity, did not respond.
4In a previous Interim Decision, dated April 21, 2011, I dismissed part of the Application under section 53(8) of the Code, on the basis that the subject-matter of much of this Application is the same or substantially the same as the subject-matter of three complaints filed with the Ontario Human Rights Commission in 1999 and 2007. The complaints of 2007 were dismissed by another Vice-chair of this Tribunal on June 2, 2010, in Pannu v. Peel District School Board, 2010 HRTO 1233. In my Interim Decision of April 2011 applying section 53(8), I found that the applicant could not pursue allegations about events up to January 2008.
5In the Interim Decision, I did not deal with other requests made by the respondents to dismiss the Application because of delay, abuse of process and failure to raise a prima facie case. I directed that a conference call be scheduled to receive the parties’ submissions on whether the remainder of the Application should be dismissed against either of the respondents. The Interim Decision provided the following directions:
[24] The allegations in the Application require some clarification before the conference call. Detail is provided for some events but other aspects are in the nature of broad and unparticularized allegations. The Tribunal therefore directs the applicant to provide particulars of the alleged discrimination and harassment following January 2008, as well as an explanation for why she did not file the Application until July 2010.
[25] Given the Tribunal’s determinations disposing of part of the Application, the respondents may, following receipt of the particulars, provide additional submissions with respect to their Requests to have the remaining allegations dismissed.
[26] The Tribunal therefore directs as follows:
a. A two-hour conference call hearing will be scheduled to receive the parties’ submissions on the respondents’ Requests to dismiss the Application, in relation to allegations about events following January 31, 2008;
b. No later than three weeks from the date of this Interim Decision, the applicant shall deliver to the respondents and file with the Tribunal a statement of particulars setting out every action, event or communication that she alleges is an incident of discrimination or harassment after January 31, 2008, including details of the person(s) involved, the date and place of each incident;
c. No later than three weeks prior to the conference call, the respondents shall deliver to the applicant and file with the Tribunal a summary of the grounds on which they seek dismissal of the remainder of the Application;
6All parties filed materials in response to the directions.
7The applicant’s statement of particulars continues to make broad and unparticularized assertions of harassment and discrimination, many of which relate to events before January 2008. To the extent there are any statements that come close to complying with the direction to provide details about her allegations of discrimination after January 2008, I can discern the following:
a. The Board conducted surveillance of the applicant through a private investigator from February 8, 2008 to June 10, 2008;
b. The applicant was assigned to work during a school break in February 2008;
c. An employee of the Board called her doctor’s office on February 25, 2008;
d. She was assigned to work during part of a school break in March 2008;
e. The Board sent her a letter dated May 15, 2008 requesting certain original medical certificates;
f. The applicant was placed in an elementary school in September 2008 and while there was compelled to work without appropriate accommodations of her disability;
g. The applicant complained to the ETFO (apparently sometime between September 2008 and February 2009) that her medical restrictions were not being accommodated and no action was taken to remedy the situation;
h. In a letter dated June 1, 2009, the Board stated that it would no longer accept medical information from her family doctor. In part of her submissions, the applicant states that this “event” occurred on June 30, 2009 but does not explain why she has chosen this date;
i. The Board’s Manager of Health, Wellness and Safety “conveyed negative information” about her to the Workplace Safety and Insurance Board (WSIB) sometime in 2009, thus delaying approval of her WSIB benefits.
8The Board submits that the allegations against it should be dismissed on the basis of delay. In the alternative, even assuming they can be proven, there is no reasonable prospect that any arguably timely allegations could lead to a finding of discrimination under the Code. In the further alternative, it relies on section 45.1 in relation to matters arising out of the applicant’s WSIB claim.
9The ETFO submits that the remainder of the allegations should be dismissed as, despite the Tribunal’s direction, they completely lack particularity. It also submits, referring to Rule 19A, that there is no reasonable prospect the Application will succeed against it, the allegations are untimely and the Application is brought in bad faith and for the sole purpose of vexing the respondents.
10During the conference call, the applicant was given an opportunity to consider the oral submissions of the respondents supplementing their written submissions, and to address the issues of delay and whether there is any reasonable prospect that the allegations could lead to findings of violations under the Code.
TIMELINESS OF THE ALLEGATIONS
11As is clear from the above, most of the allegations, even if considered to be properly particularized, are made well outside the one-year time limit as they concern events before July 2, 2009. Under section 34(1), an application may be made about otherwise untimely events if they are part of a series of incidents, the last of which occurred within a year of the filing of the application. The Board referred me to the decision in Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310, in which I discussed the meaning of “series of incidents”, as follows:
The Tribunal’s approach to what is a “series of incidents” is developing on a case-by-case basis. It has been said that events are not part of a series of incidents if there is a break in the temporal connection between them. Thus, a gap of more than one year between events would, in most cases, interrupt the series: Savage v. Toronto Transit Commission, 2010 HRTO 1360. The Tribunal has considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus: Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, Baisa v. Skills for Change, 2010 HRTO 1621. Further, it has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents: Mafinezam v. University of Toronto, 2010 HRTO 1495. [para. 42]
12Thus, the Tribunal 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. Also, where 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. See Touchette v. Ottawa Catholic School Board, 2012 HRTO 80.
13In this case, the only arguably timely allegation against the Board is that it conveyed information to the WSIB (which was said to occur sometime in 2009) that resulted in a delay of approval of a claim. The applicant asserts that the Board told the WSIB about a previous injury which was unrelated to her current claim. I find that this is not an allegation that can be considered part of a “series of incidents” with the allegations about prior events. It is not an event upon which an allegation of a violation of the Code is based. There is no claim that in conveying this information, the Board treated the applicant differently from other employees because of her disability, or that this amounts to constructive discrimination giving rise to a duty to accommodate. There is also no claim that this amounts to a reprisal for enforcing rights under the Code.
14I therefore find that as against the Board, there is no timely allegation of discrimination or reprisal. In the alternative, if the allegation about the communication to the WSIB could be viewed as an allegation of discrimination or reprisal under the Code, I find it unrelated to the allegations about earlier events, such that there is no “series of incidents” within the meaning of section 34(1)(b). A conversation between a Board Manager and the WSIB in the context of a WSIB claim, which conveys information about the applicant (whether the information was relevant or necessary to the claim), does not have a nexus to the applicant’s other allegations which are essentially about a failure to accommodate her disabilities in the workplace.
15As against the ETFO, there are no particularized and timely allegations of discrimination or reprisal. The allegation that comes closest to identifying a time frame is that the general assertion that the ETFO failed to intervene during the period September 2008 to February 2009 when the applicant complained that her medical restrictions were not being accommodated. Besides lacking any detail about the applicant’s interactions with the ETFO, this allegation is clearly untimely.
16Given that I have found almost all the allegations to be untimely, I must consider whether the delay in filing the Application was incurred in good faith.
17The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay in bringing their human rights matters forward. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and 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.
18In explaining the reasons for her delay in filing the Application, the applicant stated that in her view, the matters were continuous. She stated that there was no deliberate delay on her part. She also referred to the fact that she was involved in another proceeding before the Tribunal, which resulted in a decision on June 2, 2010: Pannu v. Peel District School Board, 2010 HRTO 1233. She states that she requested reconsideration of that decision, and had to wait over seven months for a decision on her request (a review of the decision indicates a four month period between the request and the decision). The applicant stated that because the matter was under reconsideration, she did not think she could file a new application.
19The facts are not consistent with the applicant’s submissions. As indicated at the outset, the applicant filed this Application in fact on July 2, 2010, coincident with her filing of the reconsideration request in the other application. This suggests that the applicant was dissatisfied with the Tribunal’s decision and responded by filing both a request for reconsideration and a fresh application.
20When asked during her submissions why she did not pursue her allegations about events in 2008 and 2009, until the filing of the Application in 2010, the applicant reiterated that the delay was “not deliberate”. She stated that she spent considerable energies in 2009 dealing with her claim to the WSIB. She also indicated that she complained to her union about the Board’s failure to accommodate her although, as I have indicated, the applicant did not provide any details about any of her purported interactions with the union.
21With respect to the applicant’s submission that the “matters were continuous”, and in referring to her WSIB claim and complaints to her union, she seems to be asserting that she never flagged in her efforts to raise issues arising out of her disabilities. 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: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Likewise, while this applicant may have wished to pursue informal channels without filing an application, or to devote her energies to one process before turning to another, I do not find this a reasonable explanation for waiting more than a year after the events to file this Application.
22The applicant believed from September 2008 on that her disabilities were not being accommodated on her return to work. She continued to believe this until she left the workplace in February 2009. She also believed that the decision of the Board on June 1, 2009 to stop accepting medical notes from her family doctor was part of the discrimination against her. She also believed that the ETFO had failed to assist her during the 2008-2009 school year. There is no reasonable explanation for why she waited until July 2010 to raise these issues with the Tribunal.
23In these circumstances, I am not satisfied that the delay in filing the Application was incurred in good faith. As such, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed. Although it is not necessary to make determinations on all the other arguments made in support of the request to dismiss, I will address the reasonable prospect of success of the applicant’s allegation about the Board’s communication with the WSIB, and her general allegations about the conduct of the ETFO.
REASONABLE PROSPECT OF SUCCESS
24As indicated, both respondents requested dismissal of the allegations against them on the basis, among other things, that there is no reasonable prospect the Application will succeed.
25The Tribunal has the power to determine at an early stage whether an Application raises an arguable claim of discrimination that should proceed to a full evidentiary hearing. In this case, the ETFO filed a Request for a Summary Hearing under Rule 19A, and both the Board and the ETFO responded to the Tribunal’s Interim Decision of April 2011 raising the issue of whether the Application has any reasonable prospect of success.
26The Tribunal has described the issues to be dealt with in summary hearings in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
27In this case, the issue raised by the respondents is whether, assuming the allegations made by the applicant to be true, they could reasonably be considered violations of the Code. The issue is also whether, particularly with respect to the allegation of reprisal, the applicant can show a link between the actions of the respondents and the prohibition against reprisal.
28Above, I have found that the allegation about the communication between the Board and the WSIB is not an allegation of an incident of discrimination or reprisal within the meaning of section 34(1). On that basis, I found it is not a timely allegation of discrimination or reprisal. Nonetheless, I will also assess whether, if it can be considered a timely allegation, there is any reasonable prospect that the applicant could establish that this alleged event amounts to discrimination or reprisal under the Code.
29Generally in order to find discrimination on the basis of disability, I would have to be satisfied that the applicant was either treated unequally because of her disability (direct discrimination), or that a neutral requirement had a differential impact on individuals with disabilities, which the Board failed to reasonably accommodate (constructive discrimination). In order to find reprisal, I would have to be satisfied that the respondent did something with the intention of retaliating against the applicant for claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.
30In addressing the issue of the “negative information” alleged to have been provided to the WSIB by a Board Manager, the applicant states that she inferred this from a discussion with a WSIB Case Manager. She states that the Case Manager questioned her about a fracture that she experienced in 2008. She believes that the Case Manager learned about this previous injury, unrelated to her then current WSIB claim, from the Board.
31There is no suggestion that the information allegedly provided to the Case Manager is not factually accurate. It is for the WSIB, not the Board, to determine its relevance to the applicant’s WSIB claim. Even accepting that the applicant would be able to prove that a Board employee provided the WSIB with information about a prior injury, this would not amount to unequal and adverse treatment of the applicant under the Code, because of her disability. Further, the applicant has pointed to no evidence or facts that would link this event to her prior human rights complaints. I find no reasonable prospect that this allegation could lead to a finding of discrimination or reprisal under the Code.
32With respect to the allegations against the ETFO the Tribunal has found that, in the absence of evidence that a union’s action or inaction was based on a discriminatory factor, not only is a union’s failure to file or pursue a grievance not in itself discriminatory, neither is a union’s failure to advocate on the applicant’s behalf, its failure to assist an applicant in addressing discrimination or to contest the employer’s actions, or its participation or involvement in an unsuccessful accommodation process: see Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 and the cases cited therein. There is nothing in the material before me, and nothing in the applicant’s submissions, that could support a finding that the actions of the ETFO amounted to either direct or constructive discrimination, based on the applicant’s disability. I find no reasonable prospect that the applicant’s allegations against the ETFO could lead to a finding that it violated her rights under the Code.
33The conclusion above applies not only to the allegation about events in September 2008 to February 2009, but to all of the more generalized assertions that the ETFO “failed to provide me with protection from continual harassment at my workplace”, “has been a silent spectator of the violation of the Human Rights Code”, that it has been “extremely complacent in its fiduciary duty towards me”, that it “refused to reopen the arbitration and seek the redress of the grievance filed in October 2005” and that it “failed in their duty to accommodate my disabilities and protect me from years of reprisals discrimination, harassment meted out to me by the employer…”
34Despite some obstacles in understanding the precise actions of the ETFO at issue because of the lack of particulars, it is apparent that the applicant’s complaint with her union is that it simply did not do enough to assist her in her disputes with the Board. This is not enough to form the basis of a finding of discrimination or reprisal against the ETFO. I therefore find no reasonable prospect that the applicant’s allegations against the ETFO will succeed.
REQUEST TO AMEND THE APPLICATION
35A week before the conference call in this matter, the applicant filed a Request for an Order During Proceedings seeking to amend her Application. The applicant alleges that she was advised by the ETFO on September 1, 2011 that it would not represent her in an appeal before the WSIB, despite her belief for more than a year that they were doing so. She suggests that the ETFO deliberately delayed telling her this, thus compromising her appeal and that its actions are a reprisal against her for filing the Application.
36Because of the short time between the filing of the Request and the conference call hearing on this matter, the respondents did not have an opportunity to respond to the Request, or to the allegations in it.
37Given my decision to dismiss the Application, the wide gap in time between the allegations which are the basis of the Application and those covered by the Request, the timing of the Request and the fact that it pertains to one respondent only, I find it appropriate to deny the request to expand this Application to include the new allegations. I will note that even if I had granted the request to amend the Application to include the new allegations against the ETFO, this would not have affected any of my above determinations about the other allegations. The applicant is not precluded from filing a new application based on the allegations set out in the RFOP of September 13, 2011, and subject to the normal considerations including timeliness under section 34(2) of the Code.
38In conclusion, and for the reasons given above, the Application is dismissed.
Dated at Toronto this 8th day of May, 2012.
”Signed by”_________________
Sherry Liang
Vice-chair