HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paulette McPherson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Karen Pasleigh

Respondents

INterim DECISION

Adjudicator: Ena Chadha

Date: January 23, 2013

Citation: 2013 HRTO 119

Indexed as: McPherson v. Ontario (Attorney General)

APPEARANCES

Paulette McPherson, Applicant

Osborne Barnwell, Counsel

Ministry of the Attorney General and Karen Pasleigh, Respondents

George Parris, Counsel

INTRODUCTION

1The applicant filed this Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 9, 2010, alleging discrimination and reprisal with respect to employment on the basis of race, colour, ancestry and disability.

2The applicant alleges that, throughout her almost decade-long employment with the respondent Ministry, she was subjected to a greater workload than her White counterparts and that her salary was not commensurate with her duties. The applicant also alleges that the respondents did not properly accommodate her disability. The applicant alleges that she was dismissed in October 2009 as reprisal for raising her concerns about discrimination.

3The respondents filed a Response on December 6, 2010, denying the allegations of racial and/or disability discrimination. The respondents allege that the Branch within which the applicant worked is ethnically diverse and provided a copy of a Workplace Discrimination and Harassment Investigation report prepared in response to the applicant’s internal complaint. The respondents challenge the timeliness of the Application on the basis that a vast majority of the allegations took place well beyond the Code’s one-year time limitation.

4The applicant filed a Reply on January 21, 2011, and provided further particulars on May 24, 2011. The applicant reiterated her allegations that the termination of her employment was orchestrated by the individual respondent in retaliation for her complaints that she was not being treated fairly in regards to her salary and position.

5On June 27, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) which noted that, pursuant to section 34(1) of the Code, some of the allegations contained in the Application appeared to be outside of the Tribunal’s jurisdiction as occurring in advance of the Code’s one-year time limit. The CAD directed that a teleconference hearing be scheduled regarding the issue of delay. The CAD indicated that the parties should be prepared to address the following issues:

• What are the relevant dates or timeframe with respect to the allegations?

• Whether the Application has been brought within a year of the last incident of alleged discrimination or the last incident in a series.

• If it has not, whether the delay in filing the Application was incurred in good faith and substantial prejudice will result to any person affected by the delay.

• Whether any allegations should be struck because of untimeliness.

6On August 16, 2012, the Tribunal convened a conference call to hear the parties’ submissions with respect to the issue of the timeliness of the Application. Counsel for all parties participated on the call. The applicant filed written submissions and documentary evidence prior to the teleconference hearing. Following the conference call, the applicant provided a copy of a workplace grievance and Minutes of Settlement entered into by the parties.

DECISION

7For the reasons that follow, I find that the Tribunal does not have jurisdiction over the allegations relating to events prior to May 2009 because those incidents occurred outside the Code’s one-year time limit and the delay associated with filing a claim with the Tribunal was not incurred in good faith.

CHRONOLOGICAL SUMMARY OF ALLEGATIONS

8Based on the applicant’s written submissions, the parties’ documentary materials and oral submissions, it appears that the relevant dates with respect to the applicant’s allegations of race and disability discrimination are as follows:

a. The applicant commenced employment on March 16, 2000. In 2002, the applicant observed that her salary was not commensurate with her significant workload and that White employees were treated more favourably. The applicant raised her concerns with her manager, who in turn addressed the issue with the department director, that being the individual respondent.

b. The applicant continued to complain regarding her workload and salary from 2002 to 2004 and, except for a job audit report in 2003, nothing was done to address the applicant’s concerns.

c. In February 2004, the applicant wrote to her supervisors, including the individual respondent, and indicated that she was being subjected to intentional discrimination. In April 2004, the individual respondent replied to the applicant denying the discrimination.

d. Starting in March 2005, the applicant was absent from work for six months because of carpal tunnel syndrome due to overuse of her arm which she attributes to her workload.

e. In November 2005, the applicant attempted to meet with the Assistant Deputy Minister regarding her concerns of discriminatory treatment; however, the individual respondent took issue with this and, therefore, the applicant was unable to meet with the Assistant Deputy Minister. Thereafter, the individual respondent did not assign the applicant work until early 2006.

f. In early 2006, following the advice of the union, the applicant approached her supervisor and raised the issue of union clauses prohibiting discrimination. In response, the supervisor gave the applicant basic clerical work.

g. In early 2006, the applicant advised management that she would be filing a grievance; however, at that time was told that she was not a member of the union. For six months, the applicant attempted to get help from the union to no avail.

h. In 2007, the applicant’s disability re-emerged. The applicant’s requests for accommodation were ignored, except in May 2008 she was provided with a chair for one week.

i. In March 2008, the individual respondent wrote to the applicant acknowledging that the applicant’s job was not ‘mapped out’ in the Branch.

j. From May 2008 to November 2008, the applicant was absent from work because of her disability. Upon her return to work the applicant learned that, as a result of concerns raised regarding the treatment of minorities, there was an investigation.

k. In November 2008, the union filed a grievance on behalf of the applicant alleging failure to accommodate her disability. Minutes of Settlement resolving the grievance were signed by the applicant, the respondent and the union in January 2009.

l. The applicant lodged a complaint with the Assistant Deputy Minister and a workplace discrimination and harassment investigation was commenced in January 2009.

m. In May 2009, the investigation report into the applicant’s allegations of race discrimination was released. The report found the applicant’s allegations to be unsubstantiated and the report raised concerns regarding the applicant’s conduct and use of confidential information.

n. The applicant’s employment was dismissed without cause on October 2, 2009. The applicant alleges that the erroneous and inappropriate content of the investigation report gave rise to her dismissal.

LEGAL PRINCIPLES

9Section 34 states:

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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

10The Code requires an individual to act with all due diligence and file an application within one year of the last alleged incident of discrimination or the last of a “series of incidents” of alleged discrimination. When assessing whether the allegations relate to a “series of incidents”, the Tribunal will generally consider 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, and Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457. As such, a “series of incidents” may be considered to exist where there is a common theme, similar parties and/or circumstances.

11The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay.

12The initial onus rests on the applicant to show that any delay in filing her Application was incurred in good faith: Klein v. Toronto Zionist Council, 2009 HRTO 241. The applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. As noted by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, to establish the delay was “incurred in good faith”, the applicant is required to show something more than simply an absence of bad faith.

13Given that both criteria of good faith and lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice if an applicant has failed to pass the good faith test: Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Consequently, notwithstanding the absence of substantial prejudice, the Tribunal has no power to relieve against the one-year time limit and does not have jurisdiction to determine an application in situations where the Tribunal is not satisfied that the delay was incurred in good faith.

ANALYSIS

14The applicant contends that she was subjected to ongoing racist and disability-related discriminatory acts throughout her employment culminating in her dismissal. The applicant submits that the events prior to July 2009 are part of a continuing pattern of discrimination related to her timely reprisal claim and, therefore, do not constitute untimely allegations. The applicant also submits, in the alternative, if the allegations are found to be untimely, the Tribunal should nevertheless exercise its discretion under section 34(2) of the Code to allow those allegations to proceed because any delay was caused by the applicant’s diligent efforts to seek redress through the respondents’ internal processes. As such, the applicant argues the delay was incurred in good faith and no prejudice has resulted from the delay.

Was there a series of incidents?

15This Application was filed July 9, 2010 and, therefore, the timely allegations consist of events from July 9, 2009 onwards. The first issue to be determined is whether the events alleged prior to the July 9, 2009 are part of a “series of incidents” that come within the purview of section 34(1)(b) of the Code.

16The gist of the applicant’s concerns from July 2009 and onwards relate to: 1.) the alleged discriminatory effects of the Workplace Discrimination and Harassment Investigation report on her reputation and work environment and 2.) the alleged retaliatory termination. While these allegations surrounding her dismissal are within the Code’s time limitation, the majority of the Application pertains to events prior to July 9, 2009.

17I have concerns regarding the timeliness of most of the Application because the alleged incidents are clearly outside the one-year period as set out in section 34(1) of the Code. In particular, I find that the events preceding 2004 do not constitute a “series of incidents” related to the applicant’s dismissal because there is a clear temporal break in the chronology of the events in 2004. I also find the post-July 2009 reprisal-related allegations are different in theme from the pre-2009 allegations regarding failure to accommodate the applicant’s disability.

2002-2005

18The applicant alleges that she perceived unfair differential treatment regarding her work and salary starting in 2002 and that in February and April 2004 she and the individual respondent exchanged correspondence about her concerns of discrimination. The applicant’s complaints related to work classification and salary. The applicant notes that the individual respondent wrote to her in April 2004 denying the discrimination.

19There are no allegations of any events or incidents after the April 2004 correspondence to the time that the applicant went on disability leave approximately a year later. In addition, there are no allegations of any discriminatory developments during the applicant’s disability leave from March 2005 to her return to work in November 2005. The applicant’s next allegation relates to an incident in late 2005 and early 2006 when allegedly the individual respondent thwarted the applicant’s attempts to speak to the Assistant Deputy Minister and then refused to assign work to the applicant.

20As such, there appears to be a lapse in time and break in the temporal connection between the alleged events from point of the individual respondent’s letter in April 2004 to March 2005 when the applicant commenced disability leave and during the applicant’s disability leave up to her return to work in November 2005. It is noteworthy that the Tribunal has stated that an on-going inability to return to work will not generally constitute ongoing discrimination: Prescod v. National Steel Car Limited, 2011 HRTO 2244, and N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282.

21Based on the applicant’s chronology, I find that from April 2004 until November 2005 there were no new events and as such, there can be no “series of incidents” because of this temporal gap. The Tribunal has found that a gap of more than one year between a sequence of incidents would in most cases interrupt the series: Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442.

22In summary, there appear to be no incidents of alleged discrimination from the point of individual respondent’s April 2004 letter until after the applicant’s return from disability leave in November 2005. A temporal gap of this nature has generally been found to interrupt what otherwise may constitute a “series of incidents” within the meaning of section 34(1)(b) of the Code.

2005-2009

23The applicant alleges that when she returned to work in November 2005 and up to 2009 she experienced systemic racial discrimination and that her allegations in this regard are timely because the circumstances “morphed” into her allegations of reprisal. The applicant alleges that the discriminatory events which constituted the “series of incidents” were: the individual respondent’s failure to assign her work in early 2006 because of the applicant’s attempts to speak to the Assistant Deputy Minister; the misclassification of her union membership status in 2006; the 2007-2008 failure to provide disability accommodation; and the discriminatory conclusions of the May 2009 investigation report. The applicant contends that this sequence of events is evidence of the alleged systemic discrimination that was pervasive in the work environment.

24I do not agree with the applicant’s argument that all of these out-of-time events should be accepted as part of a “series of incidents” simply because the applicant alleges systemic racial discrimination. Except for the events flowing from the release of the investigation report after May 2009, I find that the alleged incidents from 2005 to 2009 cannot be viewed as similar in nature to establish a pattern of conduct connected to the alleged reprisal. Similar to Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310, this is not a situation where the subsequent and timely acts of reprisal provide context and meaning to the previous untimely events which the applicant perceives as systemic discrimination. I also find, as recognized by the Tribunal in Keith, supra, the bare assertion of systemic discrimination cannot by itself create a nexus between separate occurrences and, in the instant case, particularly where the allegations relate to different Code grounds.

25I do, however, find that the allegations regarding the effects of the release of the investigation report in May 2009 are linked to the timely reprisal allegations. While the release of the May 2009 investigation report occurred more than a year prior to the filing of the Application, I find that the alleged discriminatory outcome of the investigation report is part of the chain of events related to the alleged retaliatory termination that is clearly within the Code’s timeline. The allegations of negative treatment starting in May 2009 with the release of the report are similar in character to, and appear to lead to, the reprisal allegation, which is a matter within the Code’s limitation period. As such, the out-of-time events (May 2009 to July 8, 2009) appear to have a nexus to the timely events (July 9, 2009 and onwards).

26In summary, I find the applicant’s allegations of systemic discrimination from 2005 to April 2009 pertain to discrete and separate issues regarding two distinct Code grounds and do not form part of a “series of incidents” with her timely allegations of reprisal contrary to the Code. I find the alleged incidents from May 2009 to July 8, 2009 are sufficiently proximate in time, similar in nature and involving issues related to the reprisal allegations to be considered a “series of incidents” for the purposes of section 34 of the Code.

Disability Allegations 2005-2008

27The Tribunal has also said that incidents engaging different grounds under the Code may not be considered to form a “series of incidents” for the purposes of section 34(1)(b): Polihronakos v. Mississauga (City), 2010 HRTO 1433. In the instant case, the applicant alleges differential treatment in duties and salary because of her race, as well as a failure to accommodate her disability.

28I find that the disability-related events are not similar in nature to the reprisal allegations. The applicant alleges that she was denied disability accommodation in 2008. This situation resulted in a grievance, which was resolved in January 2009 by way of Minutes of Settlement. The applicant’s timely reprisal allegations pertain to the investigation into allegations of direct and systemic racial discrimination with respect to wages and job classifications. The applicant’s submissions did not address what linkages exist between the out of time disability issues and the timely reprisal claims. As such, I do not find that there is a “series of incidents” that bring the disability allegations within the one-year period prior to the filing of her Application.

29I further note as an aside, although not addressed in the conference call, the matter of the grievance settlement raises a significant concern with respect to re-litigation and the application of section 45.1 of the Code and the settlement may, in of itself, potentially constitute a basis to dismiss the disability allegations.

30In conclusion, I find that the alleged incidents said to have occurred prior to April 2004 and after November 2005 are separated by a break in the chronology. I also find that the disability accommodation allegations are not similar to the incidents of racial discrimination. In all the circumstances, I am unable to find that the allegations dating from 2002 to April 2009 constitute a “series of incidents” connected to the alleged reprisal in the year prior to the filing of the Application within the meaning of section 34(1)(b) of the Code. I accept that the allegations related to the release of the investigation report in May 2009 which the applicant alleges precipitated her dismissal are part of the “series of incidents” linked to the timely reprisal allegations. I consequently find that the allegations of discrimination raised in the Application which pre-date May 2009 are untimely and the reprisal-related concerns from May 2009 to July 8, 2009 are timely allegations.

Was the delay incurred in good faith?

31In considering whether the delay was incurred in good faith, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. Factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.

32Even if I were to accept that the incidents from 2002 onwards were continuous and connected occurrences (which I do not), the applicant nevertheless has provided no explanation for why she could not have filed an Application prior to July 2009. While I appreciate that the applicant attempted to seek internal redress, the Tribunal has held that the delay associated with the other process will generally not constitute a valid explanation for the delay in filing an application: Ramnath v. Peel Regional Police, 2010 HRTO 548, and Hall v. Royal Victoria Hospital, 2010 HRTO 1165. As such, I am not persuaded that the delay in pursuing the applicant’s allegations was incurred in good faith.

33The parties’ documentation and submissions reveal that the applicant was, in fact, able to pursue her rights from 2004 onwards. The materials indicate that from 2004 to 2009 the applicant directly engaged with the respondents in attempting to seek redress for her claims of discrimination, including a settlement in 2009 of her disability accommodation grievance.

34I find it of significance that by February 2004 the applicant had perceived and characterized her experiences as racism and sought to challenge the individual respondent about the workplace issues. Further, by April 2004, the applicant knew that the individual respondent expressly did not agree with her claims of discrimination. The applicant did not take any steps to file a human rights complaint following receipt of the individual respondent’s correspondence denying her allegations, nor during her disability leave or upon her return to work. The documentary materials show that the applicant comprehensively recorded her concerns on numerous occasions. As in the Keith case, supra, there was absolutely no reason why the applicant could not have pursued her human rights concerns as early as 2004 when she first formally raised concerns about the discrimination, or in 2006 when she attempted to receive support from the union, or in 2008 when she commenced her grievance.

35The applicant argues that her extensive efforts to seek redress through her employer constitute a good faith explanation for the delay. The applicant submits that she should not be penalized for her good faith attempts to exhaust internal recourse. There is no doubt that the applicant was clearly involved in a variety of processes, including advocating on her own behalf, a grievance and an internal complaint, in pursuing her human rights. However, as previously noted, this Tribunal has repeatedly stated that the fact that an applicant pursues other avenues is not generally accepted as a good faith reason for delay in filing an application: Cartier v. Northeast Mental Health Centre, supra, at para. 23; Cain v. Toronto (City), 2010 HRTO 1176; Miller v. Prudential Lifestyles Real Estate, supra; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508; Rots v. Ontario (Community Safety and Correctional Services), 2011 HRTO 422; and Huo v. University of Western Ontario, 2012 HRTO 198.

36Except for her internal efforts, the applicant has provided no other explanation to justify the delay and why she did not pursue an Application earlier. Again, as previously noted, in order to demonstrate good faith, the applicant must show more than simply an absence of bad faith: Miller v. Prudential Lifestyles Real Estate, supra. I am not persuaded that the delay in bringing this Application was incurred in good faith.

37I have carefully considered the applicant’s submissions and materials for indications of good faith. The applicant argues that she experienced significant stress, frustration and was demoralized by the discrimination. The applicant has provided no medical evidence on the basis of which the Tribunal can determine that her mental or physical health precluded her from seeking timely human rights recourse.

38While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code: Dionne v. Toronto (City), 2011 HRTO 317; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

39Based on the information before the Tribunal, the applicant has not demonstrated why she could not meet the requisite Code deadline and that the delay in filing this Application was incurred in good faith as per section 34(2) of the Code. While the applicant was persistently seeking recourse at work, she has not established that she could not have pursued her rights before this Tribunal within the timeline mandated by the Code.

40In conclusion, it is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction over the allegations preceding May 2009 of the Application because these allegations relate to events that occurred beyond the one-year limit and the delay was not incurred in good faith.

CONCLUSION

41In conclusion, to the extent the Application makes allegations regarding events that pre-date May 2009, those allegations are untimely and not within the Tribunal’s jurisdiction. The reprisal-related allegations from May 2009 to July 8, 2009 are timely as part of a “series of incidents”.

42Accordingly, the allegations regarding the events prior to May 2009 are dismissed from the Application.