HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Kasubeck
Applicant
-and-
General Dynamics Land Systems Canada
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Kasubeck v. General Dynamics Land Systems Canada
APPEARANCES
Donna Kasubeck, Applicant
Self-Represented
General Dynamics Land Systems Canada, Respondent
Sarah Graves, Counsel
1On March 7, 2012, the applicant filed an Application alleging the respondent discriminated against her because of disability, sex, and association with a person identified by the ground of sexual orientation. She also alleged that the respondent reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The allegations contained in her Application span a two and a half year period from October 2008 to May 2011.
2By Registrar’s letter dated November 27, 2012, the Tribunal directed that the matter be scheduled for a preliminary hearing by teleconference. The parties were directed to address two issues in the hearing. The first issue was whether any or all of the allegations in the Application should be dismissed on the basis of delay. The second issue was whether any or all of the allegations should be dismissed under s. 45.1 of the Code because of the decision of an Employment Standards Officer with respect to a claim filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).
3For the reasons set out below, all allegations other than those summarized in paragraph 20 are dismissed because of delay.
procedural history
4The preliminary hearing was initially scheduled for April 30, 2013. One of the issues to be addressed in the hearing was the need for greater specificity as to the timing of the applicant’s various allegations. For most of the allegations in her Application, the applicant provided a general timeframe, extending in some cases over a period of approximately three and a half years before she filed her Application. When asked to provide more precise dates in the preliminary hearing, the applicant indicated that she would have to consult materials in her possession in order to provide more precise dates.
5Accordingly, the Tribunal rescheduled the preliminary hearing. By Case Assessment Direction (“CAD”) dated May 6, 2013, I directed the applicant to provide the Tribunal and the respondent with a chronology with specific dates or timeframes for the incidents and/or allegations contained in the Application. In the CAD, I stated that the applicant was permitted to provide particulars to support the general allegations made in her Application. However, I made clear that she was not permitted to use the chronology as a way to add any new allegations that were not already contained in her Application or Reply. In the CAD, I permitted the respondent to file an amended Response to respond to the particulars provided in the applicant’s chronology.
6The rescheduled preliminary hearing took place by teleconference on October 1, 2013.
applicant’s employment
7The applicant was employed by the respondent from April 2007 until in or around early May 2011. The respondent is a provider of combat vehicles, systems and components. The applicant was initially employed as a Logistics Support Analyst. She was diagnosed with Post Traumatic Stress Disorder (“PTSD”) after seeing a battle damaged vehicle in 2008. The applicant raised many of the allegations contained in the Application in an internal occupational health and safety complaint she made in the summer of 2010. The applicant continued her employment with the respondent until the spring of 2011.
8By letter dated April 21, 2011, the applicant advised the respondent that she had no choice but to resign effective May 8, 2011. She stated that she felt the company could no longer provide her with a safe and dignified work environment. Following this letter, the applicant continued discussions with the respondent regarding a severance package. She also filed a claim with the Ministry of Labour on June 4, 2011 to claim vacation pay, termination pay and unpaid wages while she was on sick leave. She filed her Application with the Tribunal on March 7, 2012, approximately 10 months after her last day of employment with the respondent.
Applicant’s Allegations
9In her Application, the applicant made numerous allegations of discrimination and reprisal relating to incidents that were alleged to have occurred between October 2008 and May 2011. She also raised allegations of reprisal preceding the preliminary hearing of this matter in April 2013. The applicant provided further particulars in her Reply and in the chronology she filed in response to the Tribunal’s CAD.
10In her Application, the applicant divided her allegations into four categories: sex discrimination, discrimination because of her association with a lesbian co-worker, disability discrimination, and reprisal. The allegations in each category are summarized below.
Allegations of sex discrimination
11In her Application, the applicant alleged that she was discriminated against because of sex from October 2008 to April 2010. The applicant’s allegations of sex discrimination can be summarized as follows:
a. Alleged comments – The applicant alleged that some of her co-workers and/or supervisors made comments that were discriminatory because of sex from October 2008 to January 2011. In her chronology, the applicant listed several comments allegedly made between October 2008 and October 2010. She also added comments that were made prior to October 2008 which were not encompassed by her Application.
b. Yelling and bullying – The applicant alleged that some of her co-workers and/or supervisors yelled at her and bullied her from October 2008 to October 2010.
c. Alleged assault – The applicant alleged that one of her supervisors assaulted her in November 2008 by throwing an adaptor that struck her on the knee.
12In the preliminary hearing, the applicant alleged that she was discriminated against and/or harassed because of her sex on a daily basis. She claimed that the respondent’s workplace is male dominated and that the work environment itself was hostile to women.
Allegations of discrimination due to association
13The applicant alleged that in or around January 2010 she was discriminated against due to her association with a co-worker who came out as lesbian. In the materials filed with the Tribunal, she did not allege that this discrimination continued after early 2010.
Allegations of disability discrimination
14The applicant alleged that between mid-2008 and May 2011, several of her co-workers and/or supervisors harassed her because she has PTSD. She also alleged that the respondent pressured her to return from disability leave in March 2011 against her doctor’s recommendations. Overall, the applicant alleged that the respondent undertook to treat her adversely due to her disability with the goal of pressuring her to resign.
15The applicant’s allegations of disability discrimination can be summarized as follows:
a. Unfair criticism – The applicant alleged that her supervisors and/or co-workers targeted her for unfair criticism and sought to undermine her because of her PTSD.
b. Comments, bullying and assault – The applicant alleged that her supervisors and/or co-workers bullied her and made several discriminatory comments about her PTSD. The applicant also alleged that a supervisor assaulted her by ripping a keyboard out of her hands.
c. Disclosure of disability – The applicant alleged that a supervisor disclosed her disability to other employees in the workplace without her consent.
d. Interference with benefits – The applicant claimed that the respondent interfered with her Sun Life disability benefit claim in or around the period from January to May 2011.
e. Pressuring her to return to work – The applicant claimed that the respondent forced her back to work on March 7, 2011 against her doctor’s recommendations. Shortly after returning to work, the applicant was admitted to a hospital. The applicant alleged that the respondent also discriminated against her by forcing her to call the sick line every day for a period of time. She also alleged that the respondent once again pressured her to return to work immediately upon her release from the hospital despite being told that the applicant had to follow an adult mental health program as a condition of her release from hospital.
f. Negative performance review – The applicant alleged that, on March 16, 2011, she discovered that the respondent gave her a negative performance review due to her disability and/or as a reprisal for complaints she had raised.
g. Inadequate training – The applicant alleged that the respondent failed to provide appropriate training and support to carry out her work. She provides several different examples of the respondent’s alleged failure to provide appropriate training from the time she began employment to October 2010. In her chronology, she provided two examples of the respondent’s alleged failure to train her when she returned to work in March 2011.
h. Increased workload – The applicant alleged that the respondent assigned her an unreasonably demanding workload upon her return to work. She alleged that the respondent was “setting [her] up to fail”.
i. Comment and harassment following her return to work – The applicant claimed that upon her return to work on March 7, 2011 a manager told her “Everyone has problems. You are no different. You just have to get over it.” She also claims that a co-worker harassed her by stopping by her house and sending her a friend request on Facebook.
Reprisal Allegations
16The applicant alleged that she was subject to reprisals from October 2009 to March 16, 2011 for making harassment complaints through the employer’s ethics hotline and its occupational health and safety complaint process. Her reprisal allegations can be summarized as follows:
a. Demotion – The applicant alleged that she was demoted in or around July 2010 due to her disability and/or as a reprisal.
b. Increase in workload – The applicant alleged that, in or around October 2009, her supervisors increased her workload due to her complaints about sexist and homophobic comments made by a co-worker.
c. Poor performance appraisal – The applicant discovered a poor performance appraisal on March 16, 2011. The applicant alleged that this poor appraisal was a reprisal due to her harassment complaints.
17In addition to these reprisal allegations, by letter dated April 21, 2013, the applicant alleged that the respondent had reprised against her by threatening witnesses she intended to call in a hearing of this Application. However, the applicant has not yet formally sought to amend her Application to include these reprisal allegations.
Timeliness of applicant’s allegations
18Section 34 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 last incident) to which the application relates. The Tribunal explained the policy reasons underlying this one year time limit in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”) at para. 24:
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.
19Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay. However, the Tribunal has also recognized that some of the personal characteristics and circumstances set out as grounds of discrimination under the Code can themselves have an impact on the ability to take prompt action to achieve a legal remedy. See, for example, Miller at para. 25.
20In this case, the one year time period preceding the filing of the Application extends from March 7, 2011, the day she returned from a sick leave, to the date she filed the Application – March 7, 2012. The only allegations that fall within this one year time period are her claims that the respondent discriminated against her because of disability and/or reprised against her in the following respects:
a. by forcing her back to work on March 7, 2011 against her doctor’s recommendations.
b. by forcing her to call the sick line every day for a period of time until a supervisor told her she did not have to do so any more in or around early March 2011.
c. by pressuring her to return to work immediately upon her release from the hospital in or around mid-March 2011.
d. by interfering with her Sun Life disability benefit claim in or around the spring of 2011.
e. due to a manager’s comment when she returned to work in March 2011 that everyone has problems and that she should “just have to get over it.”
f. by giving her a negative performance appraisal which she became aware of on March 16, 2011.
g. by providing inadequate training after she returned to work on March 7, 2011. In her chronology, the applicant provided two examples of what she claimed was inadequate training after she returned from a sick leave in March 2011.
h. by assigning her an unreasonably demanding workload upon her return to work in order to set her up to fail.
i. when a co-worker allegedly harassed her by stopping by her house and sending her a friend request on Facebook.
21The applicant’s allegation that the respondent reprised against her by threatening witnesses she intended to call in a hearing of this Application would also be timely. As noted above, the applicant raised these allegations in a letter but has not yet sought to amend her Application to include these reprisal allegations.
22In order to be considered timely, allegations relating to incidents prior to March 7, 2011 will only be considered if:
a. The incident is part of a series of incidents, one or more of which occurred after March 7, 2011. There must be some connection or nexus between incidents in order for them to be considered a series of incidents. A series cannot be comprised of incidents relating to discrete and separate issues. Generally speaking, a significant gap in time between incidents will generally break the series. See, for example, Lawrence v. Chrysler Canada, 2012 HRTO 1087.
b. The applicant demonstrates that the delay was incurred in “good faith”. That is, if the applicant provides a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. The Tribunal would also have to be satisfied that the applicant’s delay did not cause prejudice to the respondent.
Allegations of sex discrimination
23I find that all of the applicant’s allegations of sex discrimination must be dismissed because of delay. All of her sex discrimination allegations fall outside the one year time period identified above. Although the applicant claimed that she was exposed to a hostile work environment on a daily basis, she did not provide any examples of incidents of alleged sex discrimination occurring after January 2011. Allegations of a hostile or poisoned work environment do not suspend the time limits in the Code. See Sutherland v. District School Board Ontario North East, 2010 HRTO 2270 at para. 21. Allegations of discrimination linked to a hostile work environment, like other allegations of discrimination, must be timely in order to fall within the Tribunal’s jurisdiction to address and remedy under the Code.
24In my view, the incidents of sex discrimination alleged in the Application cannot be considered as a series of incidents with any timely allegations. The applicant’s sex discrimination allegations are distinct from the timely disability-related and reprisal allegations summarized in paragraph 20 because they relate to separate and distinct incidents and to a different ground of discrimination.
25In my view, the applicant has failed to show any good faith reason for her delay in filing her Application with respect to these sex discrimination allegations or any other untimely allegations. In the preliminary hearing, the applicant stated that she did not know she could file an application with the Tribunal while she was still employed. She also claimed that she was ill, confused and scared to lose her job.
26The Tribunal has stated that ignorance of one’s rights will only amount to good faith if the applicant establishes that he or she had no reason to make inquiries about his or her rights earlier. In my view, the applicant has failed to establish that she had no reason to make inquiries about her rights. The applicant had filed an internal harassment complaint with the respondent in the summer of 2010 for which she had the benefit of legal advice. She had the opportunity to make inquiries about her rights at that time. In such circumstances, I find that her ignorance of her rights cannot be considered a good faith reason justifying the delay in filing her Application.
27Similarly, while the applicant stated that she was ill and confused up to and after her resignation, I do not accept that this is a reasonable explanation for her delay in filing her Application. I can fully appreciate that the applicant may have been facing significant difficulties due to her PTSD. However, in the preliminary hearing, she conceded that she had discussions with the respondent about a severance package in April/May 2011. She also had the ability to file a claim with the Ministry of Labour in June 2011. In these circumstances, I am not persuaded that she could not have pursued her rights under the Code within the one year timeframe set out in s. 34.
28For these reasons, all of the applicant’s allegations of sex discrimination are dismissed because of delay.
Allegations of discrimination due to association
29The applicant’s allegation of discrimination due to association with a lesbian co-worker is also untimely. The alleged incident occurred more than one year prior to the filing of the Application and does not relate to any timely allegations so as to form part of a series of incidents. For the reasons set out in the section above, the applicant has failed to show a good faith reason for her delay in filing her Application with respect to this alleged incident. Therefore, this allegation is also dismissed because of delay.
Allegations of Disability Discrimination
30I find that the applicant’s untimely allegations of disability-related discrimination concern distinct and separate issues that do not form part of a series of incidents with the timely allegations summarized in paragraph 20. The timely allegations relate in large measure to the respondent’s actions in or around her sick leave and return to work in the spring of 2011. As noted above, the applicant filed her Application on March 7, 2012, exactly one year after she returned to work from sick leave. All of the timely allegations of discrimination relate to alleged comments and actions that occurred in relation to her sick leave and return to work. These issues are distinct from the instances of alleged harassment, bullying and abuse allegedly occurring between October 2008 and January 2011. In addition, the untimely allegations of disability-related discrimination predate her application by a significant period of time – in some cases up to three and a half years. This significant passage of time also weighs in favour of not considering them to form part of a series of incidents.
31In my view, the applicant has failed to demonstrate the required thematic relationship between her untimely and her timely disability discrimination allegations for the untimely allegations to be considered a series of incidents within the meaning of s. 34 of the Code. In my view, if the applicant wished to file a human rights application in relation to these events, she had to do so well before the date of this Application. For the reasons set out in the section above, the applicant has failed to show a good faith reason for her delay in filing her Application with respect to these untimely incidents.
32For these reasons, only the applicant’s allegations of disability discrimination summarized in paragraph 20 are timely. All other disability-related allegations are dismissed because of delay.
Reprisal Allegations
33Likewise, the applicant’s untimely reprisal allegations relate to distinct and separate issues that do not form part of a series of incidents with the timely allegations summarized in paragraph 20. As noted above, her timely disability discrimination allegations relate to events surrounding her return to work in March 2011. In addition, one of her timely reprisal allegations concerns alleged threats to intended witnesses. These issues are distinct and involve different individuals than her untimely reprisal allegations which include an alleged demotion and increased workload in 2009 due to her complaint of sex discrimination. In addition, the substantial period of time between the untimely reprisal allegations and the timely allegations in the Application also weighs in favour of considering them as separate occurrences that do not form part of a series of incidents. As with the other untimely allegations above, I find that the applicant has failed to show a good faith reason for her delay in filing her Application with respect to her untimely reprisal allegations.
34The effect of my conclusions above is that the only allegations in the Application for which the respondent can be liable are those summarized in paragraph 20. Of course, in order for the respondent to be held liable, the applicant will have to discharge her burden of showing that it is more probable than not that her disability was a factor in the respondent’s actions toward her and/or those actions were carried out with the intention of reprising against her.
35In my view, the extent to which any evidence related to any of the untimely allegations may be admitted in order to give context to the timely allegations is a matter best left to the adjudicator presiding at the hearing to determine at the appropriate time.
Section 45.1
36The respondent submitted that the Application should be dismissed under s. 45. 1 of the Code because another hearing has appropriately dealt with the substance of the Application. After her resignation, the applicant made a claim to the Ontario Ministry of Labour in which she sought payment for unauthorized deductions, unpaid wages, vacation pay, and termination pay. An Employment Standards Officer granted her claim for termination pay but denied the rest of her claims. The respondent submitted that the decision of the Employment Standards Officer appropriately dealt with the substance of the Application.
37Section 45.1 states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
38An Application can only be dismissed under section 45.1 if another proceeding has appropriately dealt with the substance of the Application. In this case, the proceeding under the ESA dealt with a set of issues that were distinct from her human rights claim. As part of her ESA claim, the applicant apparently alleged, amongst other things, that she was subject to violence and bullying during her employment with the respondent. However, as the respondent itself pointed out in its submissions, the applicant did not allege that she was subject to Code-based harassment. In her decision, the Employment Standards Officer makes no reference to any harassment, bullying or reprisal allegations, nor does she deal in any way with such allegations.
39In these circumstances, I conclude that the allegations in the Application should not be dismissed under s. 45.1of the Code.
ORDER
40The Tribunal orders as follows:
a. All allegations other than those summarized in paragraph 20 above are dismissed because of delay.
b. Since both parties have agreed to mediation, the Registrar shall schedule a half-day mediation. The parties will receive a Notice of Mediation in due course.
41I am not seized.
Dated at Toronto, this 11th day of October, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair