Sharma v. Securitas Canada Ltd., 2013 HRTO 176

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita Sharma Applicant

-and-

Securitas Canada Ltd., Milroy Mariampillai, Lee McGee, Rajanayaga Balaganthan, Motielall Ragnuth, Joe Bonsu and Angelo Foti Respondents

United Steel Workers, Local 5296 Intervenor

INTERIM Decision

Adjudicator: Ena Chadha Date: February 4, 2013 Citation: 2013 HRTO 176 Indexed as: Sharma v. Securitas Canada Ltd.

APPEARANCES

Anita Sharma, Applicant Self-represented

Securitas Canada Ltd., Lee McGee and Milroy Mariampillai, Respondents Daniel R. McDonald, Counsel

United Steel Workers, Local 5296, and Joe Bonsu, Respondents Shaheen Hirani, Counsel

Angelo Foti, Respondent Lorenzo Lisi, Counsel

Rajanayagam Balaganthan, Respondent Self-represented

INTRODUCTION

1The applicant filed this Application on April 5, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant was employed by respondent Securitas Canada Ltd. ("Securitas") as a security officer. She was assigned by Securitas to work at the Redpath Sugar Ltd. ("Redpath") location. The applicant alleges that in April 2009, she was subjected to sexual harassment by two co-workers (respondents Ragnauth and Balaganthan). The applicant alleges that Balaganthan exposed himself to her and that Ragnauth made explicit remarks in attempting to sexually solicit her. The applicant alleges that on April 6, 2010 a Securitas manager (respondent Mariampillai) called her mentally ill and told her she needed psychiatric treatment. The applicant alleges that, also in April 2010, a Redpath manager (respondent Foti) made a false complaint about her sleeping on the job requiring Securitas to remove her from the Redpath assignment. The applicant further alleges that her union president (respondent Bonsu) offered her $2000 as part of a settlement agreement to not go to the Tribunal, which she found to be an affront to her dignity.

3Responses were filed by all respondents, with the exception of respondents Balaganthan and Ragnuth. Securitas, McGee and Mariampillai (collectively "Securitas") seek the removal of all personal respondents and submit that parts of the Application should be dismissed as untimely and appropriately dealt with under section 45.1 of the Code by way of a resolution agreement regarding the discipline of the harassers. United Steel Workers, Local 5296, and Bonsu (collectively "the Union") support the request to remove the personal respondents and that the Application be dismissed as having been appropriately addressed through the resolution of the internal human rights complaint, as well as workplace grievances. Respondent Foti requests that the Application be dismissed against him as having no reasonable prospect of success and/or for delay.

4The applicant filed a Request for an Order During Proceedings in which she seeks to add Redpath and also seeks production of a telephone call recording and certain documentation.

5On March 15, 2012, the Tribunal issued a Case Assessment Direction ("CAD") granting the request for a Summary Hearing. The Tribunal directed that a teleconference hearing be scheduled pursuant to Rule 19A of the Tribunal's Rules of Procedure ("Rules of Procedure").

6The CAD highlighted the following two issues for consideration at the Summary Hearing: i) whether any of the allegations were untimely and ii) whether, based on a no reasonable prospect of success analysis, the applicant can demonstrate a link between the alleged events to a Code ground and/or social area. The Tribunal noted that if necessary, following the Summary Hearing, the Tribunal may address, or provide further directions, regarding the parties' various outstanding requests.

7A hearing by teleconference was held on June 12, 2012. The parties filed various documents both before and after the conference call. All parties, except respondent Ragnauth, participated on the conference call. Respondent Mariampillai confirmed that he personally delivered the Tribunal's package containing the Notice of Summary Hearing to respondent Ragnauth approximately one week after receipt.

DECISION

8For the reasons that follow, I find that the allegations of discrimination must be dismissed as against Lee McGee, Rajanayaga Balaganthan, Motielall Ragnuth, United Steel Workers, Local 5296, Joe Bonsu and Angelo Foti. The Application as against Securitas and Milroy Mariampillai with respect to the April 6, 2010 incident will be proceed in the Tribunal process.

ANALYSIS

Delay

9In my view, the Tribunal does not have jurisdiction over the allegations of any events preceding April 5, 2010 because those claims are untimely.

10The Application was filed on April 5, 2011 and, therefore, the timely allegations relate to events from April 5, 2010 and onwards. A significant portion of the Application involves allegations of sexual harassment by respondents Ragnauth and Balaganthan in April 2009 or earlier. Securitas investigated the applicant's allegations and Ragnauth and Balaganthan were disciplined in May/June 2009. The applicant also appears to allege that the discipline was too lenient. As such, all of these allegations are with respect to events that occurred almost two years prior to the commencement of this Application.

11Section 34 (1) and (2) of the Code read as follows:

(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.

12The Tribunal lacks jurisdiction, and thereby has no authority, to deal with allegations made in an application filed more than one year after the last incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay

13It appears based on the applicant's written submissions that she believed the Application was timely because she viewed the events as a series of incidents. The applicant appears to suggest that the incidents of sexual harassment in 2009 were part of a series of events leading up to her removal from Redpath in 2010.

14When assessing whether the allegations relate to a "series of incidents", within the meaning of section 34(1)(b), the Tribunal considers the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus, including whether individuals implicated in the events are the same. The Tribunal has found that a gap of more than one year between incidents in a series would in most cases interrupt the series: see, for example, AlSaigh v. University of Ottawa, 2012 HRTO 2 at para. 8, and cases cited therein.

15There is no indication that the 2009 events are part of series of incidents connected to the 2010 events. The alleged incidents in 2009 and 2010 are clearly separate events involving different respondents and conceptually discrete concerns. The applicant does not allege that the sexual harassment continued after April 2009. The applicant's allegations against respondent Mariampillai with respect to the April 2010 telephone call was precipitated by her concerns regarding shift scheduling. The applicant provided no factual linkage between the alleged sexual harassment and the alleged discriminatory telephone call. In addition, there is a distinct temporal break in the chronology of events between April 2009 and April 2010 with no intervening allegations of human rights concerns. Consequently, I find the 2009 events are not part of a continuing series of incidents.

16As set out above, the Tribunal may consider an otherwise untimely allegation if it is satisfied that the delay was incurred in good faith and the delay will result in no substantial prejudice to any party. If the applicant is unable to establish a good faith explanation there is no need to consider whether there would be substantial prejudice to any party: Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. The Tribunal has held that in order to demonstrate good faith an applicant must provide a reasonable explanation for the delay and show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207.

17The applicant's submissions suggest that the delay was caused by her suffering from mental health problems flowing from the sexual harassment. In determining whether an applicant's mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant's ability to file an application.

18The applicant has not provided sufficient medical evidence to establish that her mental health was so compromised in 2009 that she was unable to make a timely claim. As stated in the Tribunal's decision in Dionne v. Toronto (City), 2011 HRTO 317 while the Tribunal accepts that a delay may be in good faith because of an applicant's disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her Code rights within the requisite period of time. See also for example Reid v. Ontario March of Dimes, above; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

19The documentary evidence establishes that in 2009 the applicant was aware of her rights, sought third party assistance and pursued redress immediately following the alleged incidents. In fact, the documentary materials reveal that the applicant not only made verbal and written complaints about the sexual harassment to management and the Union, but she also challenged the language of the discipline letters issued by the respondent company to the harassers. The applicant objected to the description of the conduct as "inappropriate work behaviour" and insisted that the matter be labeled "sexual harassment". As a result of the applicant's disapproval, the letters were re-issued in June 2009.

20The documentation also confirms that after the incidents of harassment the applicant continued to work until April 2010, during which time the applicant made several phone calls and wrote lengthy emails to management regarding her various workplace concerns. For example, in July 2009, the applicant launched a grievance with the Union's assistance complaining about the issue of scheduling and seniority. The applicant also filed another grievance in April 2010 regarding her alleged unjust removal from the Redpath site. Given her efforts to protect her rights in the workplace, I find that the applicant has not demonstrated why she could not meet the Code's one-year deadline.

21The applicant submitted two medical reports from 2011. Although the applicant's evidence indicates that she was diagnosed with depression in 2011, the applicant has not established that she could not have pursued her rights within the timeline mandated by the Code. The 2011 reports do not substantiate that the applicant was a person with a disability in 2009. As previously noted, the applicant continued to work following the sexual harassment, pursued her concerns internally, objected to the content of the discipline letter and launched workplace scheduling grievances in 2009 and 2010. This chronology, and the documentation, belies the idea that the applicant was so incapacitated by a mental disability that she was unable to act on her rights in a timely fashion.

22On June 1, 2012, the applicant provided a doctor's note, dated May 31, 2012, consisting of the following single handwritten statement: "The above named was not mentally stable hence she was late in submitting her human rights paper". While it is unclear what delay this statement pertains to (namely, whether this is in reference to the issues of delay in filing the Application or the applicant's delay in filing her hearing materials in accordance with the CAD), I do not find this single statement constitutes persuasive evidence that the applicant's mental health condition was so debilitating in 2009 that it prevented her from pursuing her rights under the Code in a timely manner, particularly given the applicant's active pursuit of her concerns following the harassment and her grievances.

23In sum, I am not persuaded that the delay in bringing this Application in relation to the 2009 allegations was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction over the events in 2009 because the applicant's submissions do not meet the high onus the Tribunal requires to show that the delay was incurred in good faith pursuant to section 34(2) of the Code. Accordingly, I find the allegations in the Application regarding events prior to April 5, 2010 must be dismissed as out of time.

Summary Hearing

24At the outset of the teleconference, the Tribunal explained that at a Summary Hearing, an applicant is required to describe what evidence she has, or is reasonably available to her, that could demonstrate a link between the respondents' actions and the alleged prohibited grounds of discrimination. The Tribunal does not normally weigh or evaluate any respondent evidence that could refute the applicant's allegations.

25In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing, 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.

26In determining whether an application has a reasonable prospect of success, an application must present sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an application has no reasonable prospect of success at a hearing and will be dismissed: Nassr v. Windsor-Essex Children's Aid Society, 2013 HRTO 53.

Allegations Against McGee

27The Application contains no particulars and makes no allegations in relation to respondent McGee. As such, there is no direct or indirect discrimination or individual conduct being alleged by the applicant regarding McGee. In these circumstances the Application has no reasonable prospect of success as against respondent McGee and must be dismissed.

Allegations Against Mariampillai

28The applicant alleges that on April 6, 2010 she telephoned respondent Mariampillai to express her concerns regarding the fact that an employee with less seniority was being scheduled over her. The applicant alleges that Mariampillai advised her that the scheduling was in accordance with the client's wishes. The applicant alleges that, when she asked Mariampillai if she could verify this with the client, Mariampillai told her that she was mentally sick and that she needed to see a psychiatrist.

29In the teleconference hearing, the applicant alleged that this telephone conversation was heard by her friend, Avtar Singh, as the call was on speaker phone. The applicant also indicated the respondent company records phone calls made on its communication line and it is on this basis that she filed the RFOP requesting production of the communication line recordings. As such, the applicant submits that the potential evidence she could lead to support her allegations against Mariampillai are: 1.) the evidence of her friend, Avtar Singh, who allegedly overheard the discriminatory comment and 2.) the company's communication line tape recording of the telephone call.

30While Securitas acknowledges that it has a system of recording calls, Securitas contends that a tape recording does not exist of this conversation because the call was not made to its centralized communication line.

31I note that it is not appropriate at a summary hearing for the Tribunal to engage in an assessment of the credibility or the weight of the parties' competing evidence or to make any factual or legal findings with respect to the parties' allegations. See for example, Chappell v. Securitas Canada Limited, 2012 HRTO 874. As previously noted, at the summary hearing stage, an applicant is simply required to point to evidence that she has or is reasonably available to her that could show a link between the respondents' actions and prohibited grounds of discrimination.

32The applicant submits that her evidence, as well as the anticipated evidence of her witness and the possible production of the tape recording, will support her claim that she was subject to offensive comments regarding her mental status. In light of this potential evidence, I am unable to conclude that the applicant has no reasonable prospect of success in establishing the alleged discriminatory remarks.

33Accordingly, I cannot find that there is no reasonable prospect of success of the Application as against respondents Mariampillai and Securitas with respect to the alleged remarks made during the April 6, 2010 telephone call. The Application will therefore continue in the Tribunal's process with respect to the allegations surrounding the April 6, 2010 incident.

34It should be noted that my determination that I cannot find a lack of reasonable prospect of success with respect to this allegation does not dispose of any other jurisdictional or preliminary issues the respondents may raise regarding this allegation and my conclusion that the Application will proceed as against respondents Mariampillai and Securitas is not an assessment of the merits of the claim.

Allegations Against Foti

35The parties agree that on April 12, 2010, the applicant was informed that she would no longer be assigned for duty at the Redpath site because she was allegedly seen sleeping at her station on April 9, 2010.

36The applicant alleges that, because of his friendship with the two harassers, respondent Foti, the head of security for Redpath, made a false complaint about her sleeping on the job and required Securitas to remove her from the Redpath site.

37Respondent Foti alleges that the applicant was twice spotted asleep at her post on April 9, 2010 and that he requested the applicant be taken off the Redpath assignment because this constituted a serious breach of her duties. Foti denies any friendship with Ragnauth and Balaganthan and contends that he knew them only as he knows the applicant, namely as Securitas employees.

38When questioned in the teleconference hearing about what evidence she had, or may possibly produce, to establish she was not sleeping on the job or support her claim that Foti was motivated to remove her from Redpath because of his friendship with the harassers, the applicant indicated that her testimony should be "enough proof". The applicant asserted a belief that the harassers approached Foti to help get rid of the applicant.

39In essence, the applicant is alleging that, in April 2010, Foti, as the security manager of Redpath, in conspiracy with two Securitas security guards who allegedly sexually harassed the applicant, falsified two complaints of the applicant sleeping on the job on the same day in order to remove her from Redpath approximately one year after the alleged sexual harassment.

40The applicant asks the Tribunal to accept that her proposed testimony should be sufficient to support her claim. The applicant's allegation of discrimination as against Foti is based on her speculation of his motives. Other than a belief that Foti was friends with the two harassers, the applicant has no evidence to make out her claim. Given that the applicant is unable to point to any evidence upon which she will rely other than her bald assertion of a motive and conjecture of a friendship, I must find the applicant has no reasonable prospect of establishing that her sexual harassment complaint was a factor in Foti's request to have her removed from the Redpath assignment.

41I find that, absent any evidence that could buttress the applicant's belief of Foti's friendship with the harassers or that he sought to remove the applicant because of the past sexual harassment complaint, this allegation has no reasonable prospect of success. Accordingly, the Application as against Foti is dismissed.

Allegations Against Union

42In her Application, the applicant alleges that sometime after the incident involving Miriampillai, the union president, respondent Bonsu, offered her $2000 to sign a "mutual release agreement" to not go to the Tribunal. The applicant indicates that she felt the offer offended her self-respect and dignity. At the Summary Hearing, the applicant added that Bonsu also told her that as part of the agreement she had to leave the company.

43It appears that the applicant is alleging that Bonsu and the Union are a party to respondent Securitas' discrimination by communicating an inadequate offer to settle and that the Union failed to properly represent her interests in the settlement discussion.

44The respondents Bonus and the Union deny that they acted improperly in any way or failed to adequately represent the applicant at any time.

45In my view, the allegations of discrimination against the Union and Bonsu have no reasonable prospect of success. Even assuming that the applicant's allegations are proven, specifically that Bonsu presented the applicant an offer of $2000 to sign a mutual release agreement to not go to the Tribunal and to leave the company, there is nothing in the applicant's narrative or explanation of concerns as described in the teleconference that could be considered Code-related differential or disadvantageous treatment. At most, the applicant appears to allege that Bonus and the Union discriminated against her by communicating a settlement offer from Securitas that she perceived to be insulting.

46To establish a violation of the Code, it is not sufficient that the applicant point to conduct that she believes is unfair. As the Tribunal noted in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal's process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one's Code rights.

47The mere fact that a union has taken an allegedly weak position in bargaining on behalf of a human rights claimant will not constitute discrimination, unless it can be demonstrated that the union's actions or inactions in that role are related to a Code ground. In the instant case, the applicant was unable to highlight any evidence from which an inference might be drawn that a factor in Bonsu's role or conduct in the settlement discussion was informed or influenced by her sex, the concerns of sexual harassment or solicitation or any other Code ground.

48In Traversy v. Mississauga Firefighters' Association, 2009 HRTO 996 at para. 33, the Tribunal recognized that there may be "many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee" and, in order to make out a human rights claim, the applicant must establish that a union's failure to act was based on discriminatory factors.

49Having considered the applicant's materials and the submissions, there is no information or alleged facts that would lead me to conclude that the Union's mere communication of an offer to settle during events that form the basis of this Application would lead to liability for the Union. Nor is there any indication that the applicant is suggesting that there is a Code-related reason for the Union's communication of what she perceived to be a less than satisfactory settlement offer.

50This case is similar to Chappell, above, wherein that applicant was dissatisfied with a settlement negotiated by the Union, but pointed to no evidence that would connect the Union's actions to a prohibited ground of discrimination. The Tribunal stated that "[i]nadequate representation by a union is not, in and of itself, a violation of the Code."

51I find that the Application must be dismissed as against Bonsu and the Union as having no reasonable prospect of success because the applicant did not point to any evidence or expected evidence that could show a nexus between Bonsu's alleged conduct or role in the settlement offer and the Code.

52In its Response, the Union indicated that it wishes to intervene in this proceeding if allegations are dismissed as against it but the Application continues in some form. In Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, the Tribunal noted that "absent exceptional circumstances, the applicant's bargaining agent will be granted intervention status in Tribunal proceedings where it requests it." In accordance with the Tribunal's standard practice where an applicant is a member of a bargaining unit represented by a union, the Union's Request to intervene is granted. The scope of the proposed intervention by the union will be determined by the hearing panel.

ORDERS

53The Tribunal does not have jurisdiction over aspects of the Application prior to April 5, 2010 and, accordingly, the allegations as against Securitas and the respondent Ragnauth and Balaganthan regarding all events prior to April 5, 2010 are dismissed.

54The allegations as against respondents McGee, Foti and Bonsu and the Union are also dismissed as having no reasonable prospect of success as the applicant has been unable to demonstrate a link between the Code and the respondents' alleged actions.

55The Application as against respondents Securitas and Mariampillai regarding the April 6, 2010 incident will proceed. These respondents and the applicant have agreed to participate in mediation. Accordingly, the Tribunal will schedule a mediation.

56I would also observe at this stage that, although the allegations regarding the April 6, 2010 incident appear to be a claim of disability or perceived disability discrimination, the applicant did not indicate in her Application that she was making such a claim by checking the appropriate box on the Form 1. In my view it would be appropriate for the applicant to confirm the nature of her claim prior to mediation. As such, the applicant is directed to write to the Tribunal, copied to the respondents, within 14 days of the date of this Interim Decision confirming whether or not she alleges discrimination on the basis of disability.

57Given that the allegations against respondent Foti are dismissed, the Tribunal will not consider the applicant's RFOP proposal to add Redpath. The applicant's request for production of the telephone recording will be dealt with, if necessary, after mediation and only after the parties have complied with the Tribunal's Rules with respect to disclosure.

58The Union is granted intervenor status and the style of cause has been amended accordingly.

59I am not seized of this matter.