Hibbert v. Toronto Transit Commission, 2013 HRTO 1052

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deanne Hibbert

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Canadian Union of Public Employees and its Local 2

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 13, 2013

Citation: 2013 HRTO 1052

Indexed as: Hibbert v. Toronto Transit Commission

APPEARANCES

Deanne Hibbert, Applicant

J. David Watson, Counsel

Toronto Transit Commission, Respondent

Lucy Siraco, Counsel

CUPE, Local 2, Intervenor

Devon Paul, Counsel

Introduction

1This Interim Decision addresses the following requests:

1. The respondent’s Request for an Order During Proceedings (Form 10) to dismiss a portion of this Application for delay (“Request to dismiss”);

2. The respondent’s Request for Summary Hearing (Form 26);

3. The applicant’s Request for an Order During Proceedings (Form 10) asking to amend her Application to include further information (“Request to amend”); and

4. The Request to Intervene (Form 5) filed by the Canadian Union of Public Employee and its Local 2 (“CUPE”).

background

2The applicant filed her Application on December 10, 2012. This Application alleges discrimination in employment on the basis of sex and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The narrative in initial version of this Application detailed events which were alleged to have taken place in June 2012. However, shortly after filing, the applicant provided supplemental information, which was incorporated into her Application, that related to an investigation and events that took place in the period from 2010 – 2012.

3At the time it filed its Response, the respondent also filed it Request to dismiss for delay and its Request for a summary hearing. The applicant subsequently filed her Reply and her Request to amend.

decision and analysis

Delay

4As noted above, the applicant filed her Application on December 10, 2012. This Application concerned surveillance action that took place in June 2012, as well as earlier allegations of harassment and discrimination actions taken by the applicant’s supervisors. The Application also details actions taken by the respondent following a “petition” by several TTC employees concerning one of those supervisors. The respondent asserts that all allegations of discrimination that pre-date December 11, 2011 should be dismissed as being out of time.

5Section 34 of the Code states in part:

(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.

6The respondent submits that the applicant’s allegations concerning gender-based discriminatory behaviour all pre-date December 2011 and are, therefore, out of time. It states that these cannot be considered part of a “series of incidents” which ended with the surveillance of the applicant.

7In response, the applicant submitted a Request to amend her Application to include further and more detailed allegations with respect to her problems with her supervisors. These allegations of harassment and discrimination on the basis of her sex, as detailed in her Request to amend, consist of a series of incidents spanning from October 2010 to August 12, 2011. It is not entirely clear, but the applicant appears to have filed some form of internal complaint in that period or shortly thereafter because she attended an internal mediation with personnel from the respondent on or around September 14, 2011.

8It would appear from the material filed with the Request to Intervene that on October 13, 2011, CUPE filed a group grievance, accompanied by a petition signed by a number of employees concerning one of the applicant’s forepersons who they allege created a poisoned work environment. It would appear that the respondent’s internal investigation into that group grievance/petition is ongoing.

9The applicant does not allege any further harassment or discrimination by her supervisors in the period following the filing of the group grievance/petition. The applicant alleges that the respondent’s decision to conduct surveillance of her, even after she had notified it that she was resigning her job, is a further act of discrimination or harassment, and also an act of reprisal, contrary to the Code.

10It is my view that the earlier acts of alleged discrimination are factually distinct from June 2012 allegation and cannot be seen as part of a “series of incidents” as that term is used in s. 34. The earlier allegations are, therefore, outside the one-year time limitation set out in the Code.

11The question then becomes whether the delay was incurred in “good faith.” As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.

12On the issue of good faith, the applicant submits:

Given that the Applicant had been told that an internal investigation was in progress (and nearing conclusion), the Applicant decided, in good faith, not to file a complaint with the Tribunal at that time and to allow the internal investigation to conclude. However, as it became apparent that the internal investigation was not being handled in a timely manner, the Applicant was forced to turn to the Tribunal for relief with regards to the unlawful manner in which the Respondent has treated her.

13It is not clear from these submissions at what point the applicant concluded that the internal investigation was not being handled in a timely fashion. Her Application makes it clear that she resigned her position from the respondent on May 31, 2012. This is some indication that the applicant had lost faith in the respondent’s ability to rectify the work environment she asserted was poisoned. There is no explanation for why the applicant waited a period in excess of six months after her resignation to file her Application.

14This 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. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There was nothing to prevent the applicant from filing a separate human rights Application even while pursuing the internal investigation and/or the grievance.

15In the absence of a good faith explanation, it is not necessary to determine the issue of prejudice to the respondent. The allegations in the Application that pre-date December 11, 2011 are, therefore, dismissed for delay.

Request for Summary Hearing

16The respondent submits that the remaining allegation (i.e., the allegation concerning the surveillance in June 2012) has no reasonable prospect of success and requests that the Tribunal hold a summary hearing with respect to it. This request is denied. Rule 19A.5 of the Tribunal’s Rules of Procedure specifies the Tribunal is not required to provide written reasons for this decision.

Request to Amend

17The difficulty with proceeding with this Request is that the applicant merges her submissions in response to the Request to dismiss with her submissions on the Request to amend. The material with respect to the June 2012 allegation contains both factual allegations and legal submissions, making it difficult to determine what, if any, new factual allegations the applicant is putting forward concerning that period.

18If the applicant believes it important to clarify this matter, she is directed to file a new Request in which the proposed amendment is clearly set out.

Request to Intervene

19CUPE’s Request to Intervene is not opposed by the parties. Given its involvement in the grievance and the surveillance issue (as detailed in the applicant’s material), it is appropriate that it be added as an intervenor.

20In any event, the Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it so requests it.

21Accordingly, CUPE is granted leave to intervene. The parties have indicated an interest in participating in mediation once the Tribunal has addressed the preliminary issues set out above. CUPE will be entitled to participate in that mediation. Should the Application proceed to hearing, the scope of CUPE’s intervention will be determined by the adjudicator hearing the matter.

order

22In sum, I have made the following orders:

a. The allegations in the Application that pre-date December 11, 2011 are dismissed for delay;

b. The respondent’s request for a summary hearing is denied;

c. The applicant’s request to amend her Application is dismissed without prejudice to her making a new request; and

d. CUPE is granted intervenor status. CUPE will be entitled to participate in that mediation. Should the Application proceed to hearing, the scope of CUPE’s intervention will be determined by the adjudicator hearing the matter.

23I am not seized of this matter.