HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jennifer Seeboo
Applicant
-and-
Patrick Knight
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed As: Seeboo v. Knight
WRITTEN SUBMISSIONS
Jennifer Seeboo, Applicant
Self-represented
Patrick Knight, Respondent
Caroline V. Jones, Counsel
1The applicant filed this Application on August 30, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of sex.
2The Application was originally commenced as against an institutional respondent, the Toronto District School Board (“TDSB”), and the current individual respondent, Patrick Knight. On January 15, 2013, the Tribunal granted the applicant’s request to withdraw the Application as against the TDSB. Consequently, the Application was maintained as against only the individual respondent Patrick Knight (“the respondent”).
3On February 13, 2013, the respondent filed a Request for an Order during Proceedings requesting that the Tribunal dismiss the Application for delay. The respondent asserts that the events alleged in the Application occurred in October 2010 and/or before the end of June 2011 and, therefore, the Application was filed outside of the Code’s one-year limitation period.
4The applicant filed written submissions opposing the respondent’s request. The applicant submits that the Application falls within the one-year deadline because the final incidents of gender harassment occurred in January 2012. The applicant asserts that these incidents were detailed in documents provided to the Tribunal along with her Application.
5The respondent filed reply submissions on April 3, 2013 disputing the applicant’s claim that the Application includes the January 2012 incidents.
6Various preliminary issues arose regarding this Application and two other files related to the same respondent. As a result, the Tribunal convened a Case Management Conference Call on May 21, 2013.
Summary of Allegations
7The Application narrative begins with the applicant’s interactions with the respondent in August 2010. The applicant, a teacher, was hired as a curriculum leader at the high school where the respondent served as Principal. The applicant alleges that shortly prior to the commencement of the 2010-2011 school year, the respondent directed her to stop all curriculum programming and expressed his view that she was an “outsider”.
8The applicant alleges that the respondent allowed her to resume some of her curriculum leadership duties at the end of September or beginning of October. The applicant alleges that the respondent was abusive towards her the day after parent/teacher interviews around “approximately Wednesday October 20 or Thursday October 21, 2011”. Because of this incident, a meeting was later convened with the applicant, the respondent, the applicant’s union representative and the school’s Acting Vice-Principal. The applicant alleges that at this meeting the respondent again ordered her to cease performing curriculum leadership work.
9The applicant alleges that “[s]ubsequently, the discrimination against [her] became clearly racialized” when the respondent reassigned her curriculum leadership duties to less experienced Black teachers. The applicant alleges that the respondent deliberately ignored her at curriculum meetings and once excluded her from a meeting. The applicant concludes her narrative by alleging that she personally observed a pattern of questionable behaviour over her first year at the high school involving the respondent targeting female staff occupying positions of responsibility.
10In summary, the Application alleges that, due to the gender-based discrimination and harassment of the respondent, the applicant was not allowed to serve as a curriculum leader and, thereby, denied a leadership role during the 2010-2011 school year.
Parties’ Positions Re. Delay
11The applicant submits that the Application falls within the one-year deadline as the final incidents of gender harassment by the respondent towards her occurred up to January 2012 during her third term at the high school. The applicant asserts this information is detailed in documents she supplied to the Tribunal, namely her amended internal human rights complaint to the TDSB and the investigator’s final report. The applicant contends both documents include incidents that took place in the third term as curriculum leader, which concluded January 2012. The applicant argues that the Application was filed 7 months after the conclusion of the third term and, consequently, is a timely Application.
12The respondent submits that the Application is out of time because the last incident contained in the narrative involved the events after the parent/teacher interviews around “October 20 or 21, 2010”. The respondent argues that the applicant erroneously cites “October 20 or 21, 2011”. The respondent contends that the error was noted and corrected in the TDSB investigation report, which documents the events as having taken place in 2010. The respondent asserts that, even providing a generous interpretation, the alleged facts occurred in the 2010-2011 school year and, therefore, the Application cannot be read as disclosing any allegation after June 2011. The respondent argues that the Application must be dismissed because it is untimely and the applicant failed to provide a good faith explanation for the delay in filing the Application.
Delay Principles
13Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident or the last incident in a series of incidents of alleged discrimination. 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.
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.
14The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay in bringing their human rights matters forward: see Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with justly and expeditiously. Thus, the Code requires an applicant to act with all due diligence and file an application within one year of the alleged discrimination when seeking to pursue a human rights claim.
15In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident, or the last incident in a series of incidents, of alleged discrimination. 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.
16In determining the issue of good faith, the Tribunal has considered factors such as the length of the delay, whether Code-related reasons 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: see Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.
17As 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 must show something more than simply an absence of bad faith. The applicant must provide a reasonable good faith explanation as to why she did not pursue her rights under the Code in a timely manner: see Corrigan, supra, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
18If the applicant establishes good faith, the onus shifts to the respondent to demonstrate substantial prejudice as a result of the delay in filing the Application. Given 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 threshold: see Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.
Decision & Analysis
19Applying the above-noted principles, I find that this Application was not brought within the one-year time frame of the Code. The Tribunal does not have jurisdiction over this Application because the allegations relate to events that occurred beyond the Code’s one-year limit and the applicant has provided no explanation for the delay.
20The applicant submits that the respondent subjected her to on-going gender-based discrimination and harassment during her first year at the high school. The applicant alleges the respondent eliminated her leadership role, made abusive remarks following the October parent/teacher interviews, reassigned her curriculum duties and engaged in exclusionary conduct at various points during the 2010-2011 school year.
21The applicant does not challenge the respondent’s contention that the incident described in her narrative as occurring after the parent/teacher interviews in October 2011 in fact took place in October 2010. Since the applicant does not dispute that the narrative incorrectly cites October 2011 in describing the situation, and based on the parties’ documentation, including the TDSB report, I accept that the alleged events occurred in the fall of 2010 after the parent/teacher interviews.
22On reviewing the entirety of the Application, it is apparent that the applicant’s allegations concern the 2010-2011 school year as this exact phrase and timeframe is repeated in the narrative and other parts of the Application Forms. Although I accept that the applicant’s claims of discrimination and harassment span the 2010-2011 school year, I note the Application fails to disclose any specific date or incident after the events surrounding the alleged abusive remarks following the parent/teacher interviews, which, as noted above, the parties appear to agree occurred in the fall of 2010.
23The applicant’s response to Question 7 of the Application, which asks what the date of the last event is, states the last alleged discriminatory incident occurred on “November 24, 2011”. However, there is no reference to this specific date, nor description of any incident related to this date, in the applicant’s narrative details of her allegations. Neither the Application narrative nor the applicant’s written submission clarify what incident of discrimination is alleged to have occurred on the date of November 24, 2011. Since the applicant’s narrative and her written submissions responding to the request to dismiss failed to provide any explanation for the Question 7 date, I conclude there is no foundation or valid reason for considering the November 24, 2011 date as the last alleged event.
24In these circumstances, I agree with the respondent that the Application cannot be read as disclosing any allegations after the end of the 2010-2011 school year. As such, I have determined that the latest date for the applicant’s allegations is the conclusion of the 2010-2011 school year, that being the end of June 2011. The Application was filed on August 30, 2012, approximately 2 months outside the Code’s one-year limitation period.
25I reject the applicant’s argument that her allegations also pertain to her third term at the school, which ended in January 2012 thereby extending the timeline for filing the Application. The Application does not describe any incidents of discrimination occurring in the applicant’s third term, presumably September 2011 to January 2012. Although I do not accept that any specific third term incidents or violations are alleged in the Application, I also note the Tribunal has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents: see Mafinezam v. University of Toronto, 2010 HRTO 1495. As such, the applicant’s argument that the alleged mistreatment flowing from the cancellation of her curriculum duties in the fall of 2010 continued into her third term does not sustain the extension of the Code’s section 34(1) timeline.
26The applicant’s submissions reference the findings of the internal human rights investigation. The applicant claims that since she supplied the report to the Tribunal at the time of filing her Application, the contents of her TDSB complaint and the investigator’s report should be included in the timeline of the events alleged in her narrative. The Tribunal has determined that the fact that a person is pursuing other avenues, including internal avenues, or waiting for other 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 Cartier, supra; Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578 and Huo v. University of Western Ontario, 2012 HRTO 198.
27The applicant appears to argue that her Application should be read to involve the events in 2012 because her TDSB complaint and investigator’s 2012 report were delivered to the Tribunal. On review of the materials in the file, I am satisfied that the applicant provided the TDSB complaint and investigation report in response to the Tribunal issuing a Notice of Incomplete Application. The Notice of Incomplete Application, dated October 17, 2012, directed the applicant to respond to Questions 14 and 15 of Form 1. Questions 14 and 15 of Form 1 require applicants to supply copies of documents of other on-going or completed related proceedings for the Tribunal’s consideration of issues regarding deferral, section 34(11) and/or section 45.1 of the Code. The applicant’s correspondence dated October 25, 2012 indicates that she supplied the internal investigation documentation to fulfill her obligation to complete the Form 1 questions regarding “other proceedings – in progress” and “other proceedings – completed”.
28While the Tribunal requires the Application Forms be accompanied by various necessary related documents (for example, grievances, Statement of Claims, Minutes of Settlement, etc.), these documents do not stand in the place of detailed narrative. An applicant is required to provide a narrative explaining the alleged who/what/when/where in response to Question 8 in Form 1 of the application. The purpose of these types of particulars is to alert responding parties and the Tribunal as to what alleged facts and legal issues give rise to a breach of the Code: see Miga v. Arcelor-Mital Dofasco, 2012 HRTO 619. There is no evidence to indicate the applicant included the internal investigation documents to constitute the particulars of her allegations, nor that she sought to amend her narrative by submitting these documents. The applicant provided these documents in response to the Notice of Incomplete Application regarding Questions 14 and 15. The applicant cannot now claim that these documents supplement her narrative and constitute additional incidents to her allegations.
29The narrative deals only with the 2010-2011 school year. The investigation complaint and report deal with incidents beyond the 2010-2011 school year. At no point prior to the respondent’s request to dismiss for delay did the applicant take the position that the documents are addendums or amendments of her narrative such that the documents should be read into the Application and that her allegations include all the contents of the internal human rights investigation.
30The applicant is now attempting to rely on documentation which is neither referenced in the narrative nor forms part of the content of events alleged in the narrative to belatedly augment her narrative and lengthen the chronology of her claims. As such, in the circumstances of this case, I cannot conclude that documents provided for the purposes of responding to Questions 14 and 15 in Form 1 can form the basis of a series of incidents connecting the out of time allegations to the Code’s deadline. Lastly, I also do not find the applicant’s reliance on the internal investigation constitutes a good faith basis to extend the one-year timeline.
31It is noteworthy that, in addition to the internal human rights complaint documentation, the applicant also provided a copy of her union grievance dated March 23, 2011. Based on the grievance materials, it appears that, prior to filing with the Tribunal, the applicant sought recourse through her union for the respondent’s alleged “prejudicial treatment” in denying her role as curriculum leader. The applicant has offered no reason for why she pursued redress elsewhere before seeking to file this Application.
32In conclusion, I find that the Application was filed on August 30, 2012, approximately two months beyond the one-year limitation period provided for in section 34 of the Code. It is not necessary for me to determine whether allowing the Application to proceed would cause substantial prejudice because the Application does not allege any breaches after the end of the 2010-2011 school year and the applicant has failed to provide a good faith explanation for the delay.
33The Tribunal does not have jurisdiction over the Application and, accordingly, the Application is dismissed.
Dated at Toronto, this 2nd day of October, 2013.
“Signed by”
Ena Chadha
Vice-chair