Sisco v. Dale Brain Injury Services, 2013 HRTO 1265

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Sisco

Applicant

-and-

Dale Brain Injury Services and Neil Hopson

Respondents

DECISION

Adjudicator: Geneviève Debané Date: July 19, 2013 Citation: 2013 HRTO 1265 Indexed as: Sisco v. Dale Brain Injury Services

APPEARANCES

Katherine Sisco, Applicant Self-represented

Dale Brain Injury Services and Neil Hopson, Respondents Cheryl Rovis, Counsel

Procedural Background

1This is an Application filed on November 18, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The Application alleges that the applicant was made representations in May 2002 when she was hired that she would obtain full-time permanent employment within six months. The applicant was absent from work from July 2002 until September 2003 for medical treatment of a disability. The applicant believes that she does not have permanent full-time employment since 2002 because of discriminatory reasons.

2On January 18, 2012, the respondents filed a Request for an Order During Proceeding seeking, amongst other things, the deferral of the Application pending the conclusion of the arbitration proceeding.

3On March 29, 2012, the Tribunal issued Interim Decision 2012 HRTO 661, which deferred the Application.

4On June 16, 2012, the applicant filed a Request for an Order during Proceeding seeking the amendment of the Application (the “June 2012 Request to amend”) to include allegations of reprisal in January 2012 and in June 2012.

5On June 26, 2012, the respondents filed a Response to the June 2012 Request to amend, which opposed it for a number of reasons including that the facts therein failed to establish a prima facie case.

6On July 20, 2012, the Tribunal sent a letter to the parties advising that the June 2012 Request to amend would not be dealt with by the Tribunal because the Application was deferred.

7On August 9, 2012, the respondents filed a Request for an Order during Proceedings seeking the dismissal of the Application on the basis that another proceeding had dealt with the substance of the Application on the basis of a settlement.

8On August 13, 2012, the applicant filed a Request for an Order during Proceeding seeking the reactivation of her Application because the arbitration proceeding had concluded.

9On August 23, 2012, the Tribunal issued Interim Decision 2012 HRTO 1619, in which the Application was reactivated and the matter was referred to Mediation, which ultimately did not resolve the Application.

10On November 22, 2012, the applicant filed a Request for an Order during Proceeding seeking to amend the Application (the “November 2012 Request to amend”) to add allegations of reprisal for events that occurred in November 2012, during which the applicant resigned from her employment.

11On December 5, 2012, the respondents advised that they consented to the November 2012 Request to amend.

12On December 17, 2012, the Tribunal issued Interim Decision 2012 HRTO 2356, which granted the November 2012 Request to amend. The Tribunal did not address the June 2012 Request to amend.

13On the same day, the Tribunal also issued a Case Assessment Direction which directed that a summary hearing be held to address a number of procedural issues, including whether the Application had no reasonable prospect of success, was outside of the Tribunal’s on the basis of delay, and whether the substance of the Application had been appropriately dealt with by another proceeding.

14The Summary hearing was held via telephone conference on April 22, 2013, during which all of the parties participated. The Service Employees International Union, Local 1, had notice of the Application and did not file any submissions or otherwise seek to participate in this matter.

15I have reviewed the Application and the materials filed since then by the applicant and there are three groups of allegations that were canvassed during the summary hearing:

a. The initial allegation in the Application that the applicant does not have full-time employment with the corporate respondent for discriminatory reasons;

b. The allegations in the June 2012 Request to amend; and

c. The allegations in the November 2012 Request to amend.

The allegations in the original Application

16The applicant explained that she believes that the reason that she is not a full-time permanent employee is that she was absent from work in 2002 for treatment of her disability. The corporate respondent is required, pursuant to the collective agreement, to post permanent full-time positions. The applicant applied for permanent full-time positions in 2003 and 2005. There is no dispute that the applicant was employed in a temporary full-time position from May 2010 to August 2010. The Tribunal must determine whether the original allegations in the Application are timely.

The Law of Delay

17The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 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.

(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.

18I have considered the submissions of the parties, and it is clear that the last incident of alleged discrimination occurred in 2005, the last time that the applicant applied for a full-time position. The applicant has not suggested any other allegation which is an “incident of discrimination”. The applicant suggested that the discrimination is ongoing since she is not a permanent full-time employee. Recently in the case of Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal canvassed in detail the law with respect to delay and states at paras. 31 and 32:

The key issue in this matter is whether the alleged incident of discrimination (the wage differential) was a single act of alleged discrimination with continuing effects or whether it constitutes an ongoing series of incidents within the meaning of section 34(1). As counsel for the applicant points out, the Decision is the first time the Tribunal has had to determine whether an ongoing wage differential constitutes a continuing contravention of the Code.

As we have indicated, the underlying principle from the Divisional Court’s decision in Visic, supra, where the Ontario Divisional Court adopted the test for a “continuing contravention” was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:

What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. 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.

19The last alleged “act” of discrimination occurred at some point in 2005, when allegedly the corporate respondent denied her employment on the basis of a prohibited ground. The fact that the applicant is not a permanent employee is a consequence of that alleged discriminatory decision. The fact that she worked in a temporary full-time position in 2010 is unrelated to allegations of discriminatory conduct and is not an “act” of discrimination. I find therefore that the last incident of discrimination occurred in 2005, and that the applicant filed this Application at least five years beyond the statutory time limit.

20The Tribunal has the jurisdiction to accept an Application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay. Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

21In this case, the applicant has provided no explanation, reasonable or otherwise, for the significant delay in filing the Application. I find that the applicant has not satisfied me that the delay was incurred in good faith. It is not necessary, therefore, to address the issue of prejudice.

Reprisal

22With respect to the two remaining allegations of reprisal, in the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

23The issue that the Tribunal must address is whether these reprisal allegations have a reasonable prospect of success.

24The Tribunal explains the nature of the test for summary hearing in the decision of 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.

25The allegations contained in the June 2012 Request to amend assert that two employees, who are union stewards, complained to the corporate respondent about the applicant concerning issues that are unrelated to the Application. The applicant described that she attended meetings with the corporate respondent to discuss these issues in January 2012. The applicant told me during the call that these stewards had in fact complained about her. The applicant also received a verbal warning in June 2012 for being late. The applicant agrees that she was late but that others or also routinely late and do not receive verbal warnings.

26With respect to the allegations in the November 2012 Request to amend, the applicant explained that there was an issue with respect to clients being left alone to ride on the Para-transit and that she received a one-day suspension. The applicant explained that she then resigned from her employment because she was concerned that the corporate respondent would terminate her in the future. During the hearing the applicant first stated that this was not her fault or her responsibility to ride with the client. She then advised that she asked another employee to ride the Para-transit.

27I repeatedly asked the applicant what evidence she would rely on to establish that these events constituted reprisals under the Code. The applicant stated that she would call no employees including the employee involved in the November 2012 incident. The applicant proposed no evidence to support her belief that other employees who engage in similar misconduct are not disciplined. As pointed out by counsel for the respondents during the summary hearing, there were simply no particulars involving other employees or any other similar incidents provided by the applicant.

28I have considered the matter. I find that the applicant has no reasonable prospect of proving that the respondents intended to reprise against her for filing the Application. In this case, I have considered that the applicant agrees to some extent that certain events occurred, including complaints from co-workers, being late for work and that a client was left alone on the Para-transit. The corporate respondents’ responses, on their face, do not appear to be disproportionate to the incidents. The applicant has not pointed to any evidence that establishes, or from which an inference could be drawn, that she was treated differently than any other employee or reprised against in a manner contrary to the Code.

Order

29Given my findings on delay and that the reprisal allegations have no reasonable prospect of success I will not address the issue that the substance of the Application has been appropriately dealt with by another proceeding.

30The Application is dismissed in its entirety.

Dated at Toronto, this 19th day of July, 2013.

“Signed by”

Geneviève Debané

Vice-chair