HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sophia Colliard
Applicant
-and-
City of Toronto
Respondent
DECISION
Adjudicator: Jennifer Scott
Indexed as: Colliard v. Toronto (City)
APPEARANCES
Sophia Colliard, Applicant Self-represented
City of Toronto, Respondent Robert Church, Counsel
Introduction
1This Application was filed on September 18, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was discriminated against in her employment on the basis of her race, disability, and reprisal.
2By Case Assessment Direction dated March 26, 2013 (the “CAD”), the Tribunal determined that a summary hearing would be held to hear the parties’ submissions on whether the Application has a reasonable prospect of success. In the CAD, the applicant’s attention was specifically directed to s. 34 which states in part:
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.
3The summary hearing was held by teleconference on June 7, 2013.
ANALYSIS
Background
4The respondent’s Shelter, Support and Housing Administration Division (the “Division”) is responsible for providing shelter and support services for the City of Toronto. The Division partnered with the Mental Health Commission of Canada (the “MHCC”) and Health Canada to provide funding for a research project investigating the link between homelessness and mental health (the “At Home Project”).
5The At Home Project subsequently commissioned a caucus entitled the “People With Lived Experience Caucus” (the “PWLE Caucus”) to act as an advisory board. The purpose of the PWLE Caucus was to ensure that people with the lived experience of mental health and homelessness were collaborators in the planning and delivery of services. The applicant was a member of the PWLE Caucus. The respondent subcontracted with the Ontario Council of Alternative Businesses (“OCAB”) to administer the funds allocated by the MHCC for the PWLE Caucus.
6The applicant alleges that discriminatory statements were made towards her by a fellow Caucus member from July to October 2009 when she was a member of the PWLE Caucus. For example, the applicant alleges that her fellow Caucus member said “by the way, you were only chosen to represent Toronto because you are black”. The applicant alleges further that the same Caucus member attacked the applicant’s use of a tape recorder during meetings. The applicant states she required the tape recorder as an accommodation measure. The applicant states further that she was removed by MHCC in November 2009. After that, there was an unsuccessful attempt at mediation between the applicant and her fellow Caucus member.
7On October 4, 2011, the applicant complained to Joseph Stalteri (“Stalteri”), Manager of Service Initiatives for the Division, about her experience at the At Home Project. The applicant alleges that Stalteri informed her that he could not find any evidence to support her claim of discrimination.
8Finally, the applicant alleges that she was subject to a series of reprisals that took place in 2011 at a cognitive behavioural therapy program run by the Centre for Addiction and Mental Health (“CAMH”). She alleges that she received offensive e-mails, which she believes were sent by two women in her CAMH group.
Test for Summary Hearings
9Summary hearings are provided for under Rule 19A.1 of the Tribunal’s Rules of Procedure. It reads as follows:
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.
10Rule 19A requires me to determine whether the Application, in whole or in part, has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.
11In determining whether an Application has a reasonable prospect of success, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of “reasonable prospect of success” is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 - 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.
12There are two issues on the summary hearing. One, are some or all of the allegations untimely? Two, do the timely allegations have a reasonable prospect of success?
Timeliness
13The applicant complains about her treatment in the PWLE Caucus in 2009. She filed her Application with the Tribunal in September 2012. The allegations are outside of the one-year time period set out in the Code.
14As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.
15During the summary hearing, the applicant explained the reason for her delay in filing the Application. She advised the Tribunal that she tried to resolve her concerns rather than filing a complaint. She proceeded to mediation from December 2009 to February 2010. She had a nervous breakdown in September 2010. In 2011, when she felt better, she complained to the respondent. Stalteri investigated the complaint. The applicant asserts that Stalteri was not prepared to hold anyone accountable.
16The allegations regarding the applicant’s treatment as a member of the PWLE Caucus in 2009 are out of time and are outside the Tribunal’s jurisdiction unless the applicant can demonstrate that the delay was incurred in good faith and no substantial prejudice will result to the respondent. The applicant has failed to provide an explanation as to why she waited until September 2012 to file the Application. The allegations occurred in 2009. She went to the respondent to complain in October 2011. There is no explanation as to why she waited another year before coming to the Tribunal. The applicant has not met her onus with respect to the good faith requirement. It is not necessary for the Tribunal to address the question of prejudice to the respondent.
17The 2009 allegations are dismissed for being out of time.
Investigation
18The applicant complains about the investigation that took place in October 2011 regarding her 2009 PWLE Caucus complaints. This allegation is timely.
19Although the respondent asserts that it is not the employer of the applicant, it concedes that it is responsible for investigating concerns relating to compliance with its policies. It is evident from the Response that the respondent investigated the applicant’s complaint regarding her treatment in the PWLE Caucus. The Tribunal’s jurisprudence is clear that an employer is obliged to take reasonable steps to address complaints of discrimination or harassment in the workplace and may avoid liability by doing so. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. For the purposes of this decision, I will assume without deciding, that the human rights duty to investigate applies to the respondent in this case.
20The Response states that on October 4, 2011, the applicant complained that the PWLE and OCAB violated the respondent’s Access and Equity and Human Rights Policies. On October 13, 2011, Stalteri replied to the applicant and requested more information so that he could investigate her complaint. Stalteri investigated the applicant’s complaint and, with the applicant’s consent, contacted OCAB to discuss the applicant’s concerns. Stalteri concluded that OCAB took reasonable steps to comply with the respondent’s Access and Equity and Human Rights Policies, including engaging a third-party conflict resolution group to try and address the issues within the PLWE Caucus. On November 25, 2011, Stalteri sent an e-mail to the Applicant detailing the results of his investigation. He advised the applicant that he found no evidence of violations of the Respondent’s Access and Equity or Human Rights Policies. In December 2011, the applicant had a series of meetings with Stalteri and representatives from OCAB to discuss the results of the investigation.
21The Application does not set out the basis for her allegation relating to the investigation. The applicant did not file a Reply. The Response indicates the respondent investigated the complaint and met with the applicant to review the results of the investigation. The fact that the applicant is unhappy with the results does not mean that the respondent failed in its duty to investigate. Other than expressing disagreement with the results of the investigation, there is no allegation that the investigation was flawed in any way. The applicant pointed to no evidence that she has or that is reasonably available to her that would demonstrate that the respondent did not respond reasonably and investigate the incidents she complained of. For these reasons, the investigation allegation is dismissed as having no reasonable prospect of success.
CAMH
22The applicant has made a number of allegations against CAMH including a denial of service, misdiagnosis and reprisal. She alleges further that she has been subjected to sexually explicit and harassing e-mails from people she believes were in her group at CAMH.
23These allegations have nothing to do with the respondent in this case. As such, they are dismissed.
ORDER
24The Application is dismissed.
Dated at Toronto, this 20th day of September, 2013.
“Signed by”
Jennifer Scott
Vice-chair