HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Devica Kassim
Applicant
-and-
City of Toronto
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Kassim v. Toronto (City)
WRITTEN SUBMISSIONS
Devica Kassim, Applicant
Grace Permaul, Counsel
City of Toronto, Respondent
Heather Crisp, Counsel
Introduction
1This is an Application filed on July 9, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.
REQUEST TO DISMISS
2The respondent filed a Request for Order During Proceeding ("RFOP") seeking the dismissal of allegations contained in paragraphs 3 to 18 of the Application on the basis they are untimely. The respondent alleges:
a. that the applicant's allegations of a toxic work environment in 2010 and her allegations that such a work environment continues to exist in 2013, notwithstanding her absence on long-term disability in the intervening period, are not sufficient to create a "series of events" or to remedy the untimely nature of the 2010 allegations; and
b. the delay in bringing the Application was not incurred in good faith and the applicant has provided no reasons for her delay.
3The applicant opposes the RFOP. Her position is that the failure of the respondent to accommodate the applicant after she suffered from workplace harassment has been ongoing from July 2010 and as such constitutes a "series of incidents".
BACKGROUND
4The applicant began working for the City in 2001. Prior to going off work on stress leave in 2010, she was employed as a temporary Administrative Assistant in IT for 2 years and 4 months, reporting to Sherry Fahim.
5On July 29, 2010, the applicant applied for a permanent position of Administrative Assistant in Public Health, but alleges she received an unjustified negative reference from Ms. Fahim and alleges that she was the subject of workplace bullying, which she grieved through her Union.
6The applicant alleges that in July 2010 she raised allegations of harassment in the workplace with respect to Ms. Fahim, but got no satisfactory response, and was not accommodated with a move to a different work location, but instead told she was now to report to another person she alleges had bullied her, Ms. Kharag.
7When she reported to Ms. Kharag in November 2010, she raised an issue with the location of her desk, which she advised was not suitable because she was claustrophobic. She asked for a new desk location and did not get any response.
8The applicant alleges that because of all of these events, she suffered from severe workplace stress and had a breakdown and went off work on medical leave on November 15, 2010.
9The applicant then alleges that upon being ready to return to work in February 2013, the respondent has not accommodated her by refusing to put her in another department, and that she has been forced to return to the same environment where she was bullied.
10The respondent states the first time it received any information about the applicant's accommodation needs was in December 2012, when it received information from the insurer advising that the applicant could return to work. At that point, the respondent began to develop a return to work plan.
ANALYSIS AND DECISION
11Section 34 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) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. 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.
(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.
12In this case, the 2010 events clearly took place more than one year prior to the Application being filed, and therefore the Application does not meet the requirements of section 34(1) unless there is a series of incidents (section 34(1)(b)).
13In Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal held, at para. 30:
A review of the Tribunal's jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal's determination of whether or not allegations of discrimination are timely because they relate to a "series of incidents":
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
14Further, at paras. 39 to 42, the Tribunal held:
First, as the Divisional Court stated in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.
Second, the Tribunal looks to when the alleged discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code.
Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant's employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.
15Considering the factors set out in Garrie, the last incident occurred in February 2013, when the applicant alleges that the respondent would not accommodate her return to work in a different location. The events of 2010 and 2013 occurred 2½ years apart and are separate and independent incidents of alleged discrimination. The alleged failure to move the applicant's work location in 2010 is separate and distinct from the similar failure by the respondent to do so in 2013.
16The facts of this case are very similar to the facts in Cosby v. Aditya Birla Minacs Worldwide Inc., 2012 HRTO 2389, which also considered Garrie. In Cosby the applicant alleged that the respondent had failed to address her concerns about her poisoned work environment while she was off on a medical leave, and then failed to move her away from her alleged harassers when she returned. The Tribunal found:
[...] that the corporate respondent's alleged failure to address the applicant's disability-related concern is the last event triggering the Code's limitation period. As such, I find that the disability discrimination allegation in this case distinguishable from the cases cited by the corporate respondent which differentiate between a discriminatory effect versus a discriminatory incident.
17The applicant relied on Milne v. Toronto Police Services Board, 2013 HRTO 485, in which the Tribunal held that events that occurred approximately two years prior to the commencement of the application were timely because they had a nexus to the timely allegations. In my view, as in that case, the events in 2010 have a nexus to the timely event of February 2013 because both incidents relate to an allegation that the respondent failed in its duty to accommodate the applicant.
18The Tribunal has held that a gap of more than one year between incidents is usually not considered to be part of the same series of events. See Pakarian v. Chen, 2010 HRTO 457 at para. 25, and Baisa v. Skills for Change, 2010 HRTO 1621 at paras. 16 and 22. But in this situation, where there is an allegation of a poisoned work environment and failure to accommodate, the Tribunal finds that the fact that the gap of greater than one year between the incidents is not a bar.
19Because I have found that the applicant has established a series of incidents within the purview of section 34(1)(b), the allegations are timely. As such, I do not need to assess "good faith and no substantial prejudice" for the purposes of section 34(2). The respondent's RFOP is dismissed.
Dated at Toronto, this 4th day of November, 2013.
"Signed by" _________________________________
Dawn J. Kershaw
Vice-chair