HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kira Vallen
Applicant
-and-
Ford Motor Company of Canada, Limited
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Vallen v. Ford Motor Company of Canada
APPEARANCES
Kira Vallen, Applicant ) Self-represented
Ford Motor Company of Canada, Limited, )
Respondent ) Margaret Szilassy, Counsel
National Automobile, Aerospace, Transportation )
and General Workers’ Union of Canada ) Lewis Gottheil, Counsel
(CAW-Canada) Local 1520 )
1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on February 19, 2010. She alleges discrimination on the basis of sex in employment. The applicant self-identifies as a transsexual woman who is transitioning from male to female. She is a long term employee with the respondent Ford Motor Company of Canada, Limited (“Ford”) and worked at the St. Thomas facility (“the facility”) as a training instructor. In her employment she was represented by a union, the respondent National, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) Local 1520 (“CAW”).
2The applicant alleges that from 2004 until 2007, she was subjected to harassment and discrimination in the workplace in the form of inappropriate comments, including sexual comments, and inappropriate conduct which created a poisoned working environment. She alleges that she raised concerns with the respondent CAW, but it failed to investigate into her concerns. She also raised some of these issues with the respondent Ford. The applicant’s last day of active employment was January 3, 2007; since then she has been on an approved medical leave of absence and in receipt of long term disability (“LTD”) benefits from the respondent Ford’s insurance company.
3In addition, the applicant also alleges that on February 25, 2009, she received a harassing, offensive and threatening voicemail message from an unidentified male caller. She alleges that this call was made from a telephone number from the respondent Ford’s workplace (“the February 2009 voicemail message”).
4The respondents filed separate Responses and both filed a Request for Order During Proceedings (“RFOP”). The respondent Ford requests that the Tribunal dismiss the Application against it as being untimely and also because the February 2009 voicemail message to the applicant is not an incident of harassment relating to the applicant’s employment. The respondent CAW requests that the Tribunal dismiss the Application against it as being untimely and because the allegations against it fail to establish a connection with the Code.
5The applicant filed a Response to the respondents’ RFOPs submitting that her Application should continue against both respondents. She also submitted documentation, including medical documentation, to address the respondents’ delay submissions, and an audio recording of the February 2009 voicemail message.
6In July 2010, the applicant advised the Tribunal that she was being assisted by Joy-Ann Cohen, a lawyer, and subsequently sent the Tribunal an “Authorization and Direction for Release of Information”, dated July 22, 2010 (“the authorization”). The authorization stated:
I, Kira Vallen, authorize and direct you to accept representations and requests for information and reports, and to release information to lawyer Joy-Ann Cohen, who is assisting me in a motion brought by CAW and Ford to have my case dismissed for delay.
7Since then, the Tribunal has received material, emails and submissions filed by Ms. Cohen on the applicant’s behalf as well as some communications directly from the applicant.
8A Case Assessment Direction dated October 19, 2010 (“the October CAD”) was issued in which the Tribunal stated at para. 5:
The Tribunal is considering whether it will address the issues raised in the respondents’ submissions by way of a hearing (in person or teleconference) or in writing. Before making that determination, it directs that the applicant contact the Tribunal …, copying counsel for the respondents, to advise whether or not she intends to call her physician(s) as witness(es) or whether she intends to rely solely upon the medical correspondence (and other material) that she has already filed with the Tribunal.
9In the CAD, the Tribunal specifically directed the applicant to advise whether or not she intended to call medical practitioners as witnesses as that response would determine whether the hearing would be scheduled by teleconference or in-person. Initially, the applicant advised the Tribunal that a physician would testify on her behalf. After filing her medical documentation, she advised the Tribunal that no witnesses would be called to testify on her behalf and she requested that the hearing on the issue of delay be conducted by way of teleconference.
10The respondent Ford initially raised a concern that a lawyer representing the applicant from the Human Rights Legal Support Centre (“the lawyer”) had communicated to the respondent Ford that the February 2009 voicemail message was from February 18 rather than February 25. This was significant, the respondent Ford submitted, because the Application was filed on February 19, 2010. The applicant filed an affidavit executed by the lawyer in which the lawyer deposed that she had identified to the respondent the wrong date, February 18, and that the correct date should have been February 25, 2009. Upon receiving this affidavit, neither respondent took issue with the date of the February 2009 voicemail message.
11A Case Assessment Direction dated April 20, 2011 (“the April CAD”) was issued in which the Tribunal stated that it would convene a half-day hearing to hear the parties’ submissions on the following issues:
a. Whether the Application as against the respondent Ford is timely or whether any delay was incurred in good faith;
b. Whether the Application as against the respondent CAW is timely or whether the delay was incurred in good faith;
c. Whether the Application as against the respondent Ford, and specifically the alleged voicemail message from February 2009 is an incident of harassment under the Code relating to the applicant’s employment with the respondent Ford; and
d. Whether the Application as against the respondent CAW raises allegations that, if accepted to be true, are sufficient to establish a violation of the Code.
12The Tribunal issued a Notice of Confirmation of Hearing dated September 9, 2011 scheduling a teleconference hearing for the above-mentioned issues for October 26, 2011. Prior to the hearing, both respondents filed written submissions and case law and the applicant filed case law. On October 26, 2011 all the parties participated in the conference call and provided submissions. The applicant was assisted during the call by Ms. Cohen, who did most of the speaking on behalf of the applicant. .
13During the conference call hearing, and after the respondents made their submissions, the applicant advised that she wanted a witness, Michelle Boyce, to testify about the applicant’s state of mind and living conditions during the period of 2007 to 2009. Ms. Cohen advised the Tribunal that she learned the previous week that the applicant wished to have Ms. Boyce testify, but was not sure of Ms. Boyce’s participation until the day of the conference call hearing.
14Both respondents objected to Ms. Boyce testifying. They noted that the April CAD required the parties to file any additional facts, materials and documents upon which they intended to rely in advance of the hearing, the applicant had not previously identified that Ms. Boyce would testify and it would violate the rules of natural justice to allow Ms. Boyce to testify. The respondent CAW noted that both respondents had already provided their submissions to the Tribunal about the issues identified in the April CAD before the applicant informed them that she wanted Ms. Boyce to testify. The respondent Ford noted that the applicant had submitted a letter from Ms. Boyce, but had not advised prior to the hearing that she wanted Ms. Boyce to testify.
15After hearing the parties’ submissions, the Tribunal denied the applicant’s request to have Ms. Boyce testify. Ms. Cohen then requested to have the applicant testify about her experiences in undergoing a change in gender. The hearing adjourned for approximately 20 minutes and when it resumed, the Tribunal denied the applicant’s request to testify stating:
The parties have been well aware of the disclosure obligations for some time and until 20 minutes ago there was no indication that the applicant was going to testify. I do not see how the contents of the proposed testimony would be relevant to the issues that are before me today or even identified previously notwithstanding the importance to the applicant. But I will allow the applicant to make some concluding comments if she wishes and will allow the respondents to respond to those concluding comments if they wish.
16The applicant’s concluding comments are set out below. Neither of the respondents responded to the applicant’s concluding comments.
The Respondent Ford’s Submissions
17The respondent Ford submits that the applicant cannot rely upon the February 2009 voicemail message in combination with her allegations from 2004 to 2007 to constitute a “series of incidents” as required under section 34(1)(b) of the Code. The respondent Ford notes that the incidents and conduct alleged to have occurred between 2004 to 2007 are not about voicemail messages left for the applicant and are therefore different from the February 2009 voicemail message. The February 2009 voicemail message was left more than two years after the applicant’s last day of active work and it should be considered to be a separate and discrete incident for which the applicant seeks redress.
18Although the respondent Ford accepts that the applicant experienced mental health issues, it submits that the applicant’s allegations from 2004 to 2007 are untimely, and that the delay in filing the Application was not incurred in good faith. It submits that the medical evidence filed by the applicant is not sufficient to establish that her medical condition was so debilitating that it precluded her from filing her Application within the statutory limitation period. The respondent Ford points out that despite the medical documentation, the applicant: completed a university degree in 2007; ran a for-profit website and its attendant business from 2007 to 2009 which constitutes secondary employment; completed the procedural requirements to obtain LTD benefits; was appointed in June 2009 to serve on a board of directors of a community centre; met with counsel in October 2009 to discuss pursuing her rights under the Code; and asserted to the board of directors in October 2009 that she had commenced a lawsuit against the respondent Ford.
19The respondent Ford also asserts that some of the documentation that the applicant filed with the Tribunal is inconsistent with the applicant’s submissions in these proceedings. For example, the respondent Ford points out that a medical document filed by the applicant and stating that she left her residence in February 2009 is different from her submissions to the Tribunal that she became homeless in the fall of 2007; further, in January 2009, the applicant advised her doctor that she was of “more sound mind”, yet claims to be medically incapacitated to file an Application; and finally submits to the Tribunal that she took down her website in April 2009 yet provides statistical information about the number of “hits” her website received in June 2010. The respondent Ford submits that the Tribunal needs to assess the reliability of the applicant’s information in making its deliberations.
20The respondent Ford submits that it is prejudiced by the applicant’s delay in filing her Application. It notes the applicant’s admission that she did not notify the respondent Ford about all the alleged incidents of harassment in the workplace which prevented the respondent Ford from investigating at the time. With the allegations going back to 2004, the respondent Ford submits that it is prejudiced in its ability to identify, interview and obtain accurate recollections of the incidents alleged in the Application, particularly as the applicant has not identified a number of the alleged harassers. Since the filing of the Application, the respondent Ford’s facility has closed.
21The respondent Ford submits that the February 2009 voicemail message is not an incident of harassment relating the applicant’s employment, in that it does not meet the requirements of section 5(2) of the Code. The message was left for the applicant on the telephone number listed on her website, on which the applicant had advertised a number of services, and more than two years after she last worked for the respondent Ford. The telephone call, the applicant alleges, originated from a general line registered to the respondent Ford at its facility. While the respondent Ford does not dispute that this was one of its telephone numbers, it submits that 200 telephone lines registered to the respondent Ford at the facility and the general line from which the telephone call was alleged to have originated is not traceable to a specific extension.
22There is insufficient evidence, the respondent Ford submits, to find a nexus between the applicant’s employment and the February 2009 voicemail message or to make a finding that the telephone message was related to the applicant’s sexual orientation. The applicant is unable to identify the voice of the individual who left the February 2009 voicemail message and there is insufficient evidence to conclude that it was left by an employee of the respondent Ford. The respondent Ford submits that some of its telephones at this facility were accessible to visitors and contractors, in addition to its employees.
23Further, the respondent Ford submits, it is unclear whether the February 2009 voicemail message is intended to convey disapproval of the services advertised by the applicant on her website, or a personal dislike of the applicant rather than an attack on her sexual orientation or gender identity. Vexatious and unwelcomed comments do not amount to a violation of section 5(2) of the Code unless they are related to a prohibited Code ground.
24In reply submissions, the respondent Ford submits that the February 2009 voicemail message cannot constitute a series of incidents even if the applicant alleged elsewhere in her Application that she had previously received other harassing telephone calls.
The Respondent CAW’s Submissions
25The respondent CAW adopts, it submits, “on a principled basis” the submissions made by the respondent Ford in its RFOP and Response. It submits that the Application should be dismissed against it due to the applicant’s delay in filing her Application and because there is no prima facie case against it.
26The respondent CAW submits that there is no proof or reasonable suggestion that the February 2009 voicemail message originated from, was produced by, an extension of, or part of a course of action of, any officer, agent or representative of the respondent CAW. The applicant did not report the February 2009 voicemail message to any agent, officer or representative of the respondent CAW. It is not alleged that the call originated from the respondent union’s offices or property and therefore the February 2009 voicemail message has no connection to the respondent union.
27The remaining allegations in the Application do not, the respondent CAW submits, amount to harassment connected to a prohibited ground under the Code. The respondent CAW denies that the applicant reported many of the allegations in her Application to the respondent union and those that were reported were taken seriously and investigated by the respondent union.
28It distinguishes between the allegations before January 3, 2007 and after January 3, 2007. It notes that before January 3, 2007 the applicant appears to allege: the respondent CAW, by its plant chairperson, ignored and refused to acknowledge her; a human rights representative of the respondent CAW did not give her support in 2005 regarding transitioning issues; and the respondent CAW failed to investigate into her complaints of harassment in a satisfactory manner. After January 3, 2007, the respondent CAW submits, there are no specific allegations against, but rather the inference that the respondent CAW’s investigation into the concerns that the applicant raised with it were not done or not done to her satisfaction. The applicant participated in an investigation conducted by the respondent CAW during the summer of 2007.
29While the respondent CAW disputes the applicant’s allegations, it submits that an alleged failure to investigate allegations of harassment, taken alone, does not sustain an illegal course of conduct on the part of the respondent CAW during the years 2004 to 2007 which represent the relevant time frame for the applicant’s allegations. It submits that the respondent CAW’s newsletter expressing thanks to the applicant for hosting a barbeque did not force the applicant to disclose her intention for gender re-assignment to family members and does not amount to a Code violation.
30The respondent CAW submits that the Application as against it is untimely and ought to be dismissed as a result of delay. The applicant’s allegations as against the respondent CAW end in September 2007 and any subsequent contact is not a further incident or part of a series of incidents. The material supplied by the applicant, including the medical documentation filed, does not support her position that the delay in filing her Application was incurred in good faith. Some of the medical documentation is argumentative, with the physician advocating on the applicant’s behalf, rather than being evidence. The respondent CAW supports the respondent Ford’s submissions that the applicant manifested a capacity to engage in commercial activities requiring the energy and intellectual acuity needed to prepare and file an Application. The respondent CAW also submits that the fact the applicant met with its representatives in the fall of 2007 undermines the applicant’s submission that she was not well enough to file an Application during this time.
31The February 2009 voicemail message, based upon the respondent CAW’s previous submissions, does not constitute a “series of incidents” within the meaning of section 34(1) of the Code as against the respondent union.
32The respondent CAW disputes that the applicant reported all of the allegations now set out in her Application to it and now, six years later, the respondent CAW is prejudiced because of fading memories and the disbursement of personnel as the facility has now closed. In particular, the respondent CAW submits that it cannot locate the plant chairperson against whom the applicant makes allegations as that person left her employment in 2007. The respondent CAW notes that the allegations made by the applicant are testimonial rather than documentary in nature. Further, despite being a workplace trainer, and training employees about the internal complaint resolution procedure negotiated between the respondent Ford and the respondent CAW about harassment and discrimination, the applicant never filed a complaint under that procedure.
33In reply submissions, the respondent CAW notes that the applicant appears to have been involved in other legal proceedings, such as seeking a variance to a family court order, during the time that she claims to have been medically unable to file an Application.
The Applicant’s Submissions
34The applicant submits that the medical documentation that she filed with the Tribunal establishes that she was medically unable to file an Application with the Tribunal between 2007 to 2009. The medical documentation was written objectively to address her medical symptoms and conditions, describe her state of mind and opine that the applicant was not medically capable of filing an Application during this time period. The documentation establishes that during this period of time she experienced a major mental health illness. She filed her application for insurance benefits, which she received, with the assistance of the respondent union.
35With respect to attending Ryerson University in 2007, the applicant submits that her resume does not state that she obtained a degree during this time. The Dean of her program told her that with her state of mind she could not stay and she left the university.
36While she did start a website with its associated activities, the applicant submits that the nature of the website and its associated activities were not inconsistent with her medical condition and demonstrates that she was not mentally stable at the time. Further, as the letters from her counsellors point out, she was often physically and emotionally injured by those with whom she had business dealings. She was homeless and living on the street during some of this period of time.
37During much of 2007 to 2009, the applicant was not coherent, unable to follow through or commence anything or respond to anything and was having difficulties with the basics of life including safety and where to live, as she was homeless and living on the street during some of this period of time. Ms. Boyce took away her car keys and assisted her with some family law issues.
38The applicant submits that she is not saying that she could not have commenced an Application during the period of 2007 to 2009, and submits that her situation is similar to Lutz v. City of Toronto, 2010 HRTO 769, in which the Tribunal found that Mr. Lutz’s medical condition prevented him from filing his Application in a timely manner. She requests that the Tribunal follow Lutz, supra, in allowing her Application to proceed. She estimates that approximately 25% of this time she was neither in a state of major depression or psychosis. At the first instance when she was well enough to sustain a claim, she filed the Application.
39She submits that the allegations in her Application constitute a series of events concluding with the February 2009 voicemail message. Because the 2009 voicemail message originated from a telephone number from the respondent Ford, it is connected to the workplace. The person making the call must have felt that it was related to their work, the applicant submits, or why else would the February 2009 voicemail message have been made. It is another example of the poisoned working environment to which the applicant was subjected.
40The applicant agrees that she met with a lawyer in October 2009 and was also on a board of directors. This demonstrates that she was a “bit better” but that it does not demonstrate that she was well or stable. This particular board of directors met informally and included people with “mental instabilities” because of what they could contribute to the board.
41The applicant disputes that the respondents have experienced any prejudice by any delay in filing her Application. She notes that the respondent CAW admitted that it conducted an investigation, and while she challenges the adequacy of that investigation, it demonstrates that the respondent CAW was aware of her allegations and this undermines their prejudice argument. The fact that the facility in St. Thomas is now closed is after the Application was received by both respondents and undermines the respondents’ submissions about prejudice.
42The applicant submits that the February 2009 voicemail message is a “series of incidents” within the meaning of section 34(1) of the Code. The applicant’s evidence will be that she received a number of telephone calls related to her gender but that the February 2009 voicemail message was the first one that was traceable to a telephone number, record and for which she could obtain data. She submitted that para. 32 of her Application mentions that she “continued to receive harassing phone calls from private and unknown numbers”. Her medical documentation notes that she experienced a great deal of sadness and anxiety from that treatment that she received at work accompanied by major depression and psychosis.
43As set out above, while the Tribunal denied the applicant’s request to have Ms. Boyce testify, it did permit the applicant to make some concluding comments. The applicant stated that she disputed the way that the respondent CAW investigated into her allegations and that she had to go to the national union to have the investigation conducted in the first place. The applicant hoped that the respondents would conduct some training about transgendered persons and she hoped for the best outcome for “persons like me”.
Delay in Filing the Application
44Section 34 of the Code requires that an Application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:
(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.
45In order to satisfy the Tribunal that the delay was incurred in good faith, an 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. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
46Further, the Tribunal has observed that in providing a reasonable explanation, “[t]he term ‘reasonable’ has both objective and subjective elements, both of which must be considered within the context of the Code”. See Kelly v. CultureLink Settlement Services, 2010 HRTO 977 at para. 63.
47In the Application, and as set out in para. 2 above, the applicant alleges that from 2004 until 2007, she was subjected to harassment and discrimination in the workplace in the form of inappropriate comments, including sexual comments, and inappropriate conduct which created a poisoned working environment. She then alleges that the February 2009 voicemail message constitutes harassment under the Code and that this constitutes a “series of incidents” within the meaning of section 34(1) of the Code.
48The allegations from 2004 to 2007 do not contain specific dates, but, for the most part allege general time frames, such as, “In the fall of 2004” (para. 3) and “In the late summer of 2005” (para. 4). There are some allegations which reference a month, such as para. 10 (which references January 2006). Except for para. 34 in which some officials with the respondent CAW are named, no employees or individuals are specifically named in the Application. However, some individuals are identified by their position, such as para. 19 and the reference to the labour relations manager.
49In Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (Ont. Div. Ct.), the Divisional Court accepted a definition of “continuing contravention” from the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. In Manitoba, the Court of Appeal stated:
To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.
50While Visic, supra, was considering section 34(1)(d) under the former Code, that former language contained the same good faith explanation as required under the current section 34(2) as well as the “no substantial prejudice” component in addressing delay. Accordingly, I have applied the interpretation of the Divisional Court in Visic, supra, in determining whether or not the applicant’s allegations in this Application amount to a “continuing contravention” within the meaning of section 34(1).
51More recent Tribunal decisions have stated that to constitute a “series of incidents” within the meaning of section 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series. Further, recent Tribunal decisions have held that a series cannot be comprised of incidents relating to discrete and separate issues. And finally, a gap of more than one year between incidents in a series would interrupt the series. (See DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049 at para. 11; Baisa v. Skills for Change, 2010 HRTO 1621 at para. 22; Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9 and Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079 at para. 14.)
52The allegations from 2004 to 2007 do, in my opinion, constitute a “series of incidents” within the meaning of section 34(1) of the Code. There is not a gap of more than one year; in fact, they run continuously from 2004 until the fall of 2007, although many are separated by several months. However, I find that there is break of more than one year from the fall of 2007 (against the respondent CAW) and January 3, 2007 (against the respondent Ford) to the February 2009 voicemail message. A break of more than one year disrupts the series of incidents. See Savage, supra, and Farrell, supra.
53The February 2009 voicemail message was received by the applicant on February 25, 2009 and the Application was filed on February 19, 2010. The Application insofar as the February 2009 voicemail message is concerned is timely as it was filed within one year as required by section 34(1). However, the remaining allegations from 2004 to 2007 took place more than a year before the February 2009 voicemail message and are untimely. Accordingly, for the applicant to rely upon those allegations, she needs to establish that her delay in filing her Application was incurred in good faith.
54While the Tribunal accepts that a delay may be in good faith because of an applicant’s medical condition, it has consistently ruled that it requires medical evidence that the disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example, Forde v. Avon Maitland District School Board, 2011 HRTO 1664, and the cases cited therein at para. 39.
55From the information filed by the parties and raised during the conference call hearing, since January 2007 the applicant has:
Participated in family law court proceedings, seeking to vary support payments, with the assistance of Ms. Boyce;
In the fall of 2007, applied for, with the assistance of the respondent CAW, and received long term disability benefits from the respondent Ford’s insurer;
Met with representatives from the respondent CAW in September and October 2007 pertaining to at least some of her allegations of harassment and discrimination and participated in an investigation into those allegations;
Been homeless at some point in 2007;
Lived in shelters for homeless people from October 2008 to March 2009 in London and from March to June 2009 in Toronto;
Moved from London to Toronto;
“entered the world of website pornography and solicitation” by creating a commercial website in November 2008 to obtain funds to continue her transition from male to female. She allegedly took down the website in April 2009;
Attended Ryerson University in 2007;
Became a member of a board of directors in at least June 2009 and is identified as being “a regular outreach volunteer”;
Advised the board of directors in October 2009 that she had commenced a human rights lawsuit and may not be able to discuss items due to the lawsuit;
Met with the Human Rights Legal Support Centre (“HRLSC”) in at least October 2009, which writes to the applicant’s physicians (as evidenced by their responses in October 2009) and writes to the respondents in November 2009 containing allegations about the February 2009 voicemail message and alleging a poisoned working environment; and
Filed her Application on February 10, 2010.
56The applicant submits that the delay in filing her Application was made in good faith because of her medical condition. In her Application, at para. 36, she writes:
I was experiencing really serious mental health issues and I could not deal with the issue any further after that meeting [with the respondent CAW] in the fall of 2007. I wanted to take the case to human rights, but my psychiatrist advised me that I was not healthy enough to proceed. I was so ill that I was unable to attend to routine elements of daily life like income tax returns. I became homeless in the fall of 2007.
57She submitted medical documentation from her psychiatrist, Dr. O’Donnell, and her family physician, Dr. Tam, in support of her position that she was medically incapable of filing an Application in a timely manner. She also submitted letters from Michelle Boyce, Executive Director, Alphabet Community Centre, Cass Wender, Transitional Support Worker, My Sisters Place/WOTCH, and Karen Burton, an outreach worker to sex workers in support of this position.
58Dr. O’Donnell, whom the applicant identifies in her Response to her RFOP as being her treating psychiatrist and who approved the medical treatment for the applicant to transition from male to female, wrote a letter dated October 15, 2009 to the applicant’s former lawyer at the HRLSC and a letter to Ms. Cohen dated July 27, 2010. He also signed medication documentation dated January 9, 2007, March 21, 2007, June 14, 2007, October 12, 2007, December 17, 2007January 13, 2009, and December 14, 2009.
59The October 15, 2009 letter contains quotations from Dr. O’Donnell’s clinical notes. It does not contain any opinion from Dr. O’Donnell. Most relevant to the issue of delay and the applicant’s state of mind are Dr. O’Donnell’s notes from January 28, 2009 and March 13, 2009 which state:
13/03/2009 “Harassing message on answering machine came from Ford plant.[“] “We know where you live Dick Tracy.” I didn’t feel safe in my apartment so I took eviction notice.
28/01/09 “I’m being more sound of mind – workplace incident, I’m not reliving them anymore. I’m full of anger toward CAW and Ford…”
60Dr. O’Donnell’s July 27, 2010 letter does provide an opinion about the applicant’s delay in filing her Application. It states, in part:
…. I can confirm that the above named has very severe psychiatric problems. I saw her a [sic] 5th Jan 2007 after the incident on 3 Jan 2007 in Ford Motor Company of Canada. I saw her on multiple occasions since that date.
I understand that an [sic] filing of complaint should have been lodged with one year of the incident i.e. Jan 008. She in fact filed on 25th Feb 2010. The tardiness was due to her severe agitation and poor contact with reality during this time. I fully support her attempts to investigate this incident by the Human Rights Tribunal of Ontario.
61Dr. O’Donnell’s other medical documentation indicates as of March 21, 2007 to January 14, 2009, the applicant is able to perform activities related to daily living, self-care and hygiene, although social activities and recreational activities as of January 14, 2009 are described as “can be inappropriate”. He notes that she can cash cheques. Dr. O’Donnell’s medical documentation also identifies that the applicant has had, amongst other things, psychotic episodes, depression, substance abuse, agitation, poor concentration and poor ability to stay on track or follow advice.
62Dr. Tam’s letter is addressed to Ms. Cohen, dated July 26, 2010 and states in part:
I wish to state that Kira Vallen came under my care in April, 2007. At the time there was evidence of some significant mental stress related to her situation at work which resulted in her human rights claim involving her employer. There was already some evidence of anxiety, insomnia and depressive symptoms. She was mainly being followed by Dr. David O’Donnell, her attending psychiatrist, at the time. I was out of touch with her from approximately July 2007 until the spring of 2009 when she returned to my care and informed me that she had been homeless and very unwell for the intervening period. She had developed some major mental health issues and was on stronger medication. …
It is my professional opinion that she was not medically capable of commencing a human rights claim between January 2007 and March 2009.
63Ms. Boyce’s letter is dated August 5, 2010 and only addresses the February 2009 voicemail message, her involvement in saving the voicemail message and sending it the Human Rights Legal Support Centre.
64Cass Wender is a transitional support work with My Sisters Place/WOTCH, which is located in London and provided a letter dated September 28, 2010 which states in part:
I have counselled and worked with with [sic] Kira Trace Vallan for the past 3 years starting in 2007 at my previous job … and have carried forward working with Kira at my current job of 2 years at My Sisters’ Place.
During that period of 3 years Kira dropped in for sporadic councils on a weekly basis, she was generally in poor health, suffering from numerous physiological, physical and emotional issues.
On many occasions she presented with physical signs of abuse and violence done to her, she also had paranoid type episodes and presented with severe emotional issues. These issues continued to escalate with her drug use, homelessness, physical assaults, and struggles with diagnosed (PTSD) mental health issues.
65Ms. Burton, in her letter dated September 27, 2010, describes her “on and off since 2007” involvement with the applicant. She states that during this period the applicant attended before Ms. Burton with physical injuries from “dates”, had low emotional and physical state, was “on occasion forced to live in shelters” complicated by the fact that the applicant’s surgery was not completed, and that she was an “outcast” at most places she went for services, which added to her suffering. She writes, “This last year is the first time I have seen Kira in a place that she can manage to get herself together enough to find housing and have what it takes to go through the legal process that she is facing”.
66I realize that an applicant has one year from the last incident, which, assuming the reference to January 3, 2007 is the last allegation against the respondent Ford (and which may not be an actual allegation but rather her last day of active work) would give the applicant until January 2008 to file her Application. With the respondent CAW last being mentioned in the fall of 2007 (and again assuming that to be an allegation), the applicant had until the fall of 2008 to file her Application as against the respondent CAW.
67While the Tribunal has held that an applicant’s medical condition may constitute a reasonable explanation for a delay in filing an Application, it has held that such medical evidence must demonstrate that the applicant’s medical condition was so debilitating to explain the delay. With respect to the documentation that the applicant has submitted, I find that it does not demonstrate that the applicant’s medical condition was so debilitating that she was unable to file her Application.
68In coming to this conclusion, I find it significant that Dr. Tam’s letter only addresses the period of time from July 2007 until the spring of 2009 as being the period that the applicant was medically unable to file her Application and yet it was written in July 2010. Dr. Tam’s letter does not address the period from the spring of 2009 until February 2010 when the applicant in fact filed her Application.
69Dr. O’Donnell’s July 2010 letter supports the applicant’s attempts to raise her issues with the Tribunal. Dr. O’Donnell provides one brief sentence, “The tardiness [in filing her Application] was due to her severe agitation and poor contact with reality during this time”. His October 2009 letter notes that in January 2009 the applicant stated that she was “more of sound mind”.
70In my view, the medical documentation does not address how the applicant could engage in the other activities from 2007 until 2009, namely attending university, participating in family law matters, filing her LTD application, meeting with representatives of the respondent CAW about her harassment and discrimination allegations, operating a for profit website, volunteering, being a member of a board of directors and meeting with legal counsel in addressing the applicant’s delay in fling her Application.
71But more importantly, and despite being given the opportunity to do so, the applicant advised that she did not want to call her physicians as witnesses with respect to the issue of her delay in filing her Application. Accordingly, the doctors’ letters are largely conclusory in nature and given without an opportunity to obtain a more detailed basis for their medical opinions. This distinguishes this case from the circumstances of Kelly, supra, and Lutz, supra. In both of those cases, the Tribunal heard evidence. In Kelly, supra, the applicant’s doctor testified. In Lutz, supra, the applicant’s wife testified about the significant assistance she provided to the applicant, whom, the Tribunal accepted after hearing his evidence, could not remember very clearly a significant period of time. In Lutz, supra, and unlike in the case before me where the respondents are disputing the applicant’s stated reasons for her delay, the respondent did not contest the evidence of the applicant and his wife.
72Further, the applicant admitted during the conference call that she was “not saying that she could not have, during the period of 2007 to 2009, commenced an Application” and that for 25% of the time she was neither in a state of major depression or psychosis. Accordingly, the applicant had submitted that she was capable for approximately 6 months from 2007 to 2009 and yet she filed her Application in February 2010.
73Clearly, and for the purposes of this Interim Decision, the Tribunal recognizes that the applicant has experienced some difficulties for a number of years in transitioning from male to female and the Tribunal is not suggesting that transitioning from one gender to the other is easy. However, in substantiating a delay in filing an Application where the allegations, such as in this Application, are not particularized and go back a number of years, the onus is on the applicant to provide the Tribunal with documentation which supports a medical condition rendering an applicant incapable of filing an Application and which does not require the Tribunal to make assumptions or draw inferences about activities which appear to suggest that an applicant has the medical capacity to file an Application. In such cases, as in this case, I would expect to see documentation, including medical documentation, that squarely addresses activities that appear to suggest that an applicant is medically capable of filing an Application. I have not been provided with such documentation and accordingly I cannot conclude that the applicant was medically incapable of filing an Application to explain the delay. See Garaad v. Regional Municipality of Peel Police Services Board, 2010 HRTO 2101 at para. 12.
74Accordingly I have determined that the applicant has not provided a reasonable explanation for her delay in filing her Application with respect to her allegations from 2004 to 2007. Accordingly, the allegations from 2004 to 2007 against both respondents are untimely and are dismissed. However, the February 2009 voicemail message is timely.
75Following Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579, I do not need to determine whether the respondents were prejudiced as a result of the applicant’s delay in filing her Application. However, while I note that the facility was closed after the Application was issued to the respondents, I would have found that the respondent Ford was prejudiced in its ability to respond to the allegations. The applicant had not previously raised many of her allegations with the respondent Ford and the allegations set out in the Application, as noted in various paragraphs within this Interim Decision, are very vague and unparticularized. As the respondent CAW conducted an investigation into allegations of harassment and discrimination in the fall of 2007, I would not have found that it was prejudiced in its ability to respond. In that regard, I also note that the respondent CAW filed a fulsome Response to the Application, whereas the respondent Ford did not.
The February 2009 Voicemail Message
76Section 5(2) of the Code states:
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer of by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
77Section 7(2) of the Code states:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
78In her material and in her submissions, the applicant alleges that the February 2009 voicemail message came from the respondent Ford’s facility. Most significantly the applicant does not allege that the message came from the respondent CAW or that the respondent CAW was in any way involved with the February 2009 voicemail message. The Application is dismissed against the respondent CAW and the style of cause is amended accordingly. Accordingly, I do not need to consider issue (d) of the April CAD as set out in para. 11 above. If I did consider issue (d) of the April CAD, I would have found that the allegations, as set out in the Application, did not constitute a prima facie violation of the Code as against the respondent CAW. Dissatisfaction with how a union investigates into allegations of harassment and discrimination in the workplace, or being ignored, do not, in and of themselves, amount to a prima facie violation of the Code. See Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760.
79As previously indicated, the February 2009 voicemail message is timely as against the respondent Ford. If it constitutes harassment, the February 2009 voicemail message falls within the meaning of section 7(2) of the Code and not section 5(2). The question is whether or not it does.
80Section 10 of the Code defines “harassment” as meaning “engaging in a course of vexatious comment or conduct that is known or ought reasonably to have known to be unwelcome”. The Tribunal has recognized that in appropriate cases, a single incident, if serious, will meet the definition of harassment. See Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9 at paras. 65 – 68.
81“Sex”, as defined under the Code, can include transsexuals. See Forrester v. Peel (Regional Municipality) Police Services Board et al, 2006 HRTO 13 at para. 410.
82“In the workplace” as used in section 7(2) has been broadly interpreted to include locations outside the physical workplace. See, for example, Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421; Simpson v. Consumers’ Assn. of Canada (2002), 2001 CanLII 23994 (ON CA), 57 O.R. (3d) 351 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 83 (S.C.C.). Accordingly, a voicemail message left for the applicant on her cellular telephone and originating from the respondent Ford’s workplace could, in my view, fall within section 7(2) of the Code.
83Accordingly, the allegations pertaining to the February 2009 voicemail message can continue. As the applicant and the respondent Ford have both agreed to mediation, the Tribunal will schedule the Application for mediation.
84I am not seized.
Dated at Toronto, this 9th day of May, 2012.
“signed by”
Alison Renton
Vice-chair