Oakley v. Lanark (County), 2013 HRTO 1305

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine D. Oakley

Applicant

-and-

The Corporation of the County of Lanark

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: July 25, 2013

Citation: 2013 HRTO 1305

Indexed as: Oakley v. Lanark (County)

APPEARANCES

Katherine Oakley, Applicant

Self-Represented

The Corporation Of The County Of Lanark, Respondent

Colin J. Youngman, Counsel

Introduction

1This is an Application filed on October 18, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal or a threat of reprisal contrary to the Code with respect to the applicant’s employment.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on January 16, 2013, directing that a Summary Hearing take place. The Summary Hearing was held by conference call on April 29, 2012 and both parties attended.

3The CAD directing that a summary hearing take place noted that it appeared that some of the allegations may be untimely and directed that at the summary hearing, the applicant would address the issue of delay. It also directed that the applicant would make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence upon which she would establish an intention to commit a reprisal in the respondent’s alleged actions.

DECISION

4For the reasons that follow I find that most of the allegations are dismissed as untimely and the one remaining timely allegation in this matter is dismissed as the matter has no reasonable prospect of success.

ANALYSIS

Summary Hearings

5In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

7The applicant is employed as a health care aid at the respondent’s Municipal Home for the Aged, Lanark Lodge (“Lanark Lodge”). In August, 2008, she filed an Application with the Tribunal under section 53(3) of the Code, alleging that the respondent subjected her to discrimination, harassment and reprisal in the workplace because her disability-related medication prevented her from working evening shifts. The parties attended at a mediation conducted by the Tribunal on October 27, 2008, and the applicant was represented by counsel. The parties entered into Minutes of Settlement, resolving that Application at that time.

8The applicant subsequently attempted to have the settlement set aside, alleging that she had signed the settlement “under duress”. She asked the Tribunal to reconsider its decision to dispose of the Application, set aside the minutes of settlement and defer the Application pending a parallel arbitration proceeding. In an earlier decision of the Tribunal, Oakley v. Lanark (County) 2009 HRTO 1034, the Tribunal found that the applicant had not set out a sufficient factual basis to establish that the minutes of settlement were signed “under duress”. Accordingly, the Tribunal refused to proceed with the Application, in light of the signed minutes of settlement.

9On June 10, 2010, the applicant filed an Application under s. 45.9 of the Code, alleging that the respondent had breached the above-noted settlement. That Application resulted in a further Tribunal Decision, Oakley v. Lanark (County) 2010 HRTO 2274 (“Oakley”). In that Application, the applicant alleged that the Minutes of Settlement had required the respondent employer to provide the names of 3 psychiatrists to conduct an Independent Medical Examination (IME), but they had only provided 2. She also alleged that the employer had breached the Minutes of Settlement by refusing to grant her paid leave in order to attend her medical appointments. Finally, she alleged that the employer had breached the Minutes of Settlement by “second guessing” her doctor and refusing to implement the accommodation recommended in the IME.

10The Tribunal found in Oakley that both parties had breached the Minutes of Settlement. It found that the respondent employer had breached them by only providing the names of 2 psychiatrists. It did not find that the Minutes of Settlement required the respondent to pay for the applicant’s doctors’ appointments and therefore found no breach of settlement in this regard. With respect to the final allegation, the Tribunal noted that there had been correspondence back and forth between Dr. Kerr (the doctor who performed the IME) and the respondent, with the respondent asking further questions, providing further information and seeking clarification. The applicant had also taken issue with the fact that the respondent posed supplemental questions and did not automatically grant her permanent day shift accommodation after receipt of the January 2010 report from Dr. Kerr. The Tribunal also noted that at one point during the period of this correspondence, the respondent had proposed to the applicant a schedule which would have her working two consecutive evening shifts (which they indicated was based on their interpretation of the IME report at that stage). The decision noted that when Dr. Kerr rendered his final report on August 19. 2010, the respondent acknowledged that due to her disability related needs, the applicant should be maintained on day shifts. With respect to her allegation of a breach of settlement in this regard, the Tribunal stated:

I do not agree with the applicant’s allegations that the respondents’ conduct violates the agreement. I find that the respondents’ requests for further information were reasonable and did not constitute a contravention of the Settlement…I am unable to conclude that the respondents contravened the Settlement, particularly given that the applicant was maintained in the accommodated day shift position while the respondents sought further information from Dr. Kerr.

11In the narrative in this Application, the applicant provides details regarding her interactions with the respondent regarding accommodation dating back to May 19, 2008 and continuing to November 16, 2010, repeating several allegations referenced in the decision in Oakley.

12Additionally, in her Application, the applicant alleges that the respondent reprised against her on June 25, 2012, for having exercised her rights under the Code and for having obtained the above-noted settlement of her Application in October, 2008. In particular, she alleges that it changed the site of her work assignment, requiring her to perform part of her shift in one area of Lanark Lodge, and the other part of her shift in another area. She includes a June 22, 2012 letter from the Director of Resident Care, in which it confirms a June 11, 2012 conversation with the applicant and her union representative. It states also that it is confirming that based on a review of the needs of the residents in the various areas of Lanark Lodge, it was determined that a “re-alignment of PSW hours needs to occur to support optimum resident-centred care” and confirms that it would be splitting her duties between two areas of Lanark Lodge, effective June 25, 2012. It also noted that there would be no change to her assigned work hours, and arranged an orientation to the new area for her. It attached a copy of a draft work routine and the Director advised that she would “welcome your feedback as you work through the job duties in the assigned areas”. The applicant does not indicate that she provided any feedback to the respondent with regard to the job duties.

13The applicant also provided information relating to a claim she filed against her employer with the Ministry of Labour on July 30, 2012, in which she alleged she had suffered a reprisal. Additionally, she filed information relating to grievances her union filed on her behalf in 2008 relating to accommodation of her disability.

14Finally, the applicant voiced her displeasure with her union and its representation of her. I note, however, that she has not named the union as a respondent to this Application and her comments with respect to her union are not addressed in this decision.

DELAY

15Section 34 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.

16In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, 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, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

17In her Application, as noted above, the applicant relates allegations from May 19, 2008 to November 16, 2010, and also an allegation with respect to an event occurring on June 25, 2012. While I note that she references November 16, 2011 in the narrative section of her Application, the documentation she provides in relation to that allegation is dated November 16, 2010. According to section 34(1)(b) of the Code, an allegation prior to the one-year period before the filing of the Application is timely if it was part of a series of events.

18In considering whether allegations may be considered a part of a series of events, the Tribunal has generally found that events are not part of a series of incidents if there is a break in the temporal connection between them. I accept and agree with the reasoning in Chintaman v. Toronto District School Board 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series.” The time period from November 16, 2010 to June 25, 2012, exceeds one year. I find no reason in this case to deviate from the Tribunal’s reasoning with respect to a gap in time of over one year between incidents. Accordingly, I find that the events prior to October 18, 2011 do not form part of a series of events and they are untimely.

19As the allegations prior to one year before October 18, 2012 are untimely, the applicant must establish that the delay was incurred in good faith, because under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

20In explaining the delay, the applicant states that she was “afraid of what the respondent might do, after the first time at the Human Rights Tribunal”. She submits that she has been afraid of retaliation and afraid for her job every day for the last five years or so. I note that the applicant had previously filed two Applications against the respondent employer with the Tribunal, had taken action to have the settlement of one of those Applications set aside, had her union file more than one grievance on her behalf, and she filed a claim at the Ministry of Labour, all in relation to her claim for accommodation of her disability. She also states that she thought that as these issues had been dealt with in her Application regarding a breach of the settlement, she could not raise them again in another Application. She also stated that she was concerned that she could not afford legal fees to pursue her rights. While she has indicated a fear of retribution as a reason for her delay, she has provided no explanation as to why pursuing her rights again under the Code caused her to fear retribution, but did not prevent her from pursuing grievances or a claim at the Ministry of Labour. In circumstances where the applicant was aware she had rights pursuant to the Code, represented herself before the Tribunal, and where she sought to enforce them on several occasions over the years, at the Tribunal, through the grievance process and at the Ministry of Labour, I cannot find that her delay in filing an Application which relates to events prior to one year prior to October 18, 2012, was in good faith. Accordingly, allegations more than one year prior to the date this Application was filed are dismissed on the basis of delay.

Intention and a link between the grounds cited and the respondent’s alleged actions

21Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

22As the Tribunal stated in the CAD directing that this summary hearing take place, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. At para. 31 of Noble v. York University, 2010 HRTO 878, the Tribunal stated as follows:

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate…

23To proceed with the allegation of reprisal, therefore, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondent’s alleged actions.

24The only timely allegation in this Application is the applicant’s allegation that the respondent reprised against her when on June 25, 2012 it changed the physical area in which she had been working. She alleged that she had been put to work in one particular area of Lanark Lodge “as per my accommodation” and she also alleged that this change in area was in violation of her seniority rights under the collective agreement. She indicated that she wanted the union to file a grievance on her behalf regarding the “split routine”, but that it would not do so. According to this new arrangement, she was to spend only part of her shift in the area where she had been previously working and the other part of her shift was to be spent performing her health care aid duties in another part of Lanark Lodge. She has not indicated that this change required her to work the heaviest corridors.

25It is clear that the applicant was displeased with the change in her work area for part of her shift in 2012. Curiously, she also makes an untimely allegation that for about one and a half years, prior to the June 2012 change in work area, she had been assigned to work in the heaviest corridors at Lanark Lodge, away from the area where her mother, who was a resident there, lived at the time, and the applicant considered this too to have been reprisal. In any event, even if the applicant is now saying that she wanted to remain working in the heaviest area, the Tribunal does not have the general power to deal with allegations of unfairness. The applicant alleges reprisal by the respondent contrary to the Code. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s Code protected rights. To succeed in this Application, therefore, she must be able to establish such intention and a link between the grounds cited and the respondent’s alleged actions.

26While she has indicated that she was not happy being assigned to work in different areas of the respondent as a health care aid, in a daytime shift, the applicant has not pointed to evidence she would rely upon to establish that the respondent intended to reprise against her. While she has indicated that she would have assigned work differently, according to seniority, she has made a bald assertion that the respondent’s actions were by way of reprisal for the fact that she had exercised her rights under the Code, but she has pointed to no evidence upon which she would rely to establish an intention to reprise and a link between the grounds cited and the respondent’s alleged actions. Without such evidence, her Application cannot succeed.

27I find that there is no reasonable prospect that the one timely allegation in the Application will succeed and it is dismissed.

OTHER

28I note that following the summary hearing, the applicant sent several letters and additional documentation to the Tribunal, copying the respondent. The respondent submitted that the applicant’s post-hearing submissions and production of documents was inappropriate. The respondent also indicated that it would not provide a response to the additional documentation or submissions unless directed to do so by the Tribunal. The Tribunal did not seek submissions from the respondent regarding the applicant’s post-hearing documents and submissions.

29The summary hearing was the applicant’s opportunity to provide submissions regarding the timeliness of her allegations and why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence upon which she would establish an intention to commit a reprisal. Setting aside the question of whether it was appropriate for the applicant to provide further submissions or documentation, a review of those submissions and documents reveals that in large measure, they deal with allegations which have been found to be untimely. She alleges that another individual who was being accommodated for a disability, had his rotation changed also, though she provides no dates or other particulars. Additionally, she advises that Dr. Kerr will be providing another report for her and she complains about her union’s failure to represent her and to provide her with a copy of her “union file”. She also provides a copy of an undated petition which she says was signed by 130 staff members, protesting the respondent’s “attendance awareness policy”. The petition itself indicates that signatories agree that the policy should be abolished. The additional submissions and documentation do not address the matter of whether the applicant’s delay in filing her Application was incurred in good faith, nor do they point to the evidence upon which she would establish an intention to commit a reprisal.

Even if they are taken into account, they do not alter the result in this decision, which is based on the applicant’s failure to provide evidence of good faith in the delay in filing her Application with regard to all allegations but for the allegation related to June 25, 2012, and is based on her failure to point to the evidence she would rely upon to establish an intention to commit a reprisal when the respondent assigned her in June, 2012, to work for part of her shift in another area of Lanark Lodge.