HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Katarzyna Zieba
Applicant
-and-
Zeljko Veselinovic Dentistry Professional Corporation
Respondent
INTERIM DECISION
Adjudicator: Ruth Carey
Indexed as: Zieba v. Zeljko Veselinovic Dentistry Professional Corporation
WRITTEN SUBMISSIONS
Katarzyna Zieba, Applicant
Self-represented
Zeljko Veselinovic Dentistry Professional Corporation, Respondent
D. Stephen Jovanovic, Counsel
1This is an Application filed on February 21, 2012, 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, ancestry, place of origin, and ethnic origin; and reprisal.
2The applicant was employed by the respondent as a receptionist from sometime in late 2008 until February 23, 2011. The Application alleges the applicant was subject to slurs in the workplace because of her place of origin; that the respondent failed to accommodate her disability; and that she was harassed and discriminated against in employment and eventually terminated because of her disability.
3This Application is scheduled to be heard in Windsor on November 18 and 19, 2013.
4On October 21, 2013, the Tribunal issued a Case Assessment Direction (“CAD”) informing the parties that it intended to conduct a case management conference by telephone. The case management conference was held on October 31, 2013, and on November 1, 2013, the Tribunal issued another CAD to confirm the directions and timelines discussed during the call.
5One of the topics explored during the case management conference was the issue of timeliness raised in the Response. This is an issue because the Application was filed on February 21, 2012, but many of the incidents described in it occurred prior to February 21, 2011. The CAD of November 1, 2013, directed the parties at paras. 3-4 as follows:
By November 6, 2013, the applicant shall file with the Tribunal and deliver to the respondent her written submissions on whether or not the Tribunal has the jurisdiction to deal with any of the incidents detailed in her application that occurred prior to February 21, 2011, taking into account the wording of s. 34(2) of the Code and the summary of the law contained in paras. 30 and 32 of Garrie v. Janus Joan Inc., 2012 HRTO 1955.
By November 8, 2013, the respondent shall file with the Tribunal and deliver to the applicant its written submissions on timeliness and the allegations in the Application that are based on incidents that occurred prior to February 21, 2011.
6On November 6, 2013, the applicant filed and delivered additional medical documentation that she intends to rely on at the hearing; but she did not make any submissions with respect to the issue of timeliness. On November 8, 2013, the respondent filed and delivered its submission, which addresses the timeliness issue and the respondent’s position with respect to the allegation of reprisal in the Application.
ANALYSIS
7As explained during the case management conference call, section 34 of the Code says in part:
- (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.
The Allegations in the Application of Discrimination on the Basis of Ancestry, Place of Origin, and Ethnic Origin
8With respect to the allegations of discrimination on the basis of ancestry, place of origin, and ethnic origin, the applicant confirmed during the case management conference that those parts of the Application are based on a number of occasions when the applicant was called a “Pollack”. She also stated that the last such incident probably occurred in late 2010 as after that her illness took precedence and was the focus of everything.
9What this means is the last incident complained of with respect to the allegations of discrimination on the basis of ancestry, place of origin, and ethnic origin occurred more than one year prior to the date the Application was filed. Pursuant to s. 34 of the Code the Tribunal has no jurisdiction to consider these allegations unless it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
10In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal states at para. 23:
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).
11And in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 the Tribunal states at para. 20:
At a minimum, the Tribunal requires a reasonable explanation for why an applicant did not pursue his or rights under the Code in a timely manner.
12In her submission filed in response to the CAD of November 1, 2013, the applicant offers no reasons as to why she waited more than 14 months after the last incident of being called a “Pollack” to file this Application.
13The Application itself states that between February 23, 2011, and March 1, 2011, the applicant spoke with “Kenneth @ Human Rights and Elaine at the Labour Board”. Given this statement there is no reason to believe the applicant was unable to pursue her right to file this Application within the 12 month period required by section 34(1).
14Absent some explanation for the delay, I am not prepared to find that it was incurred in good faith. As a result it is not necessary to address the second branch of the test in s. 34(2) with respect to substantial prejudice to any person. That part of the Application that alleges discrimination on the basis of ancestry, place of origin, and ethnic origin shall be dismissed as out of time.
The Allegations with Respect to Disability
15The Application describes a number of incidents that the applicant alleges are related to her disability of irritable bowel syndrome. The allegations with respect to disability may be summarised as follows:
a. Following her diagnosis in the fall of 2010, the respondent harassed the applicant and discriminated against her because of her disability by:
i. making negative comments like she “needs to tough it out”, “it is all in your head”, “guess who’s sick again”, and referring to the applicant as delusional;
ii. sending her abusive texts asking her when she would be at work while she was in the hospital;
iii. threatening to dismiss her if she was late or absent due to her illness; and
iv. terminating her employment in part because of disability-related lateness and absences.
b. The respondent breached its duty to accommodate by:
i. Refusing to let the applicant keep liquids at her desk;
ii. Failing to allow her to be absent from work or to leave early when she was actively ill;
iii. Requiring her to attend at the office to work at times when that meant the applicant would have to forgo taking her medication; and
iv. Disciplining her and eventually terminating her employment for illness-related absences and lateness.
16The respondent takes the position that the only incident described in paragraph 15 above that occurred during the one year period prior to the filing of the Application is the termination of the applicant’s employment on February 23, 2011. Therefore, it argues that is the only allegation that should proceed to a hearing.
17The difficulty with the respondent’s submission is that it does not address the wording of s. 34(1)(b) which indicates that where there is a series of incidents, the one year limitation period does not start to run until the last incident in the series.
18The CAD of November 1, 2013, refers the parties to the summary of the law as to what constitutes a series of incidents set out in paras. 30 and 32 of Garrie v. Janus Joan Inc., 2012 HRTO 1955, which say:
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?
As we have indicated, the underlying principle from the Divisional Court’s decision in Visic, supra, where the Ontario Divisional Court adopted the test for a “continuing contravention” was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:
What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.
19As can be seen from the summary set out above in paragraph 15, what the Application is alleging is a series of events that could all be considered separate acts or breaches of the Code; they are of the same character in that they all involve treatment that is allegedly or apparently related to the applicant’s disability. The Application is not alleging a single act with continuing effects or consequences; rather it is alleging a pattern of discriminatory behaviour on the part of the respondent that culminated in the applicant’s dismissal from employment. There also does not appear to be a meaningful temporal gap in the series of incidents.
20As a result of the factors discussed above, I find that the incidents alleged in the Application with respect to disability as summarised in paragraph 15 above, constitute a series of incidents for the purpose of s. 34(1)(b). This means the Application is not out of time with respect to those incidents or allegations.
Miscellaneous
21The respondent’s submission of November 8, 2013, argues that the reprisal allegation in the Application has no reasonable prospect of success. As the CAD of November 1, 2013, does not invite the parties to make submissions on that issue it will not be addressed until the hearing of the Application.
22There are a number of factual allegations in the Application that are not tied to any ground. During the case management conference call the applicant confirmed those factual allegations were included as background information only. Therefore it is not necessary for the parties to lead evidence at the hearing with respect to those factual allegations which include: employees telling lies and gossiping about the applicant; the incident with respect to artificial nails ("Acrylics"); the applicant being "spoken to" about her treatment of one of the associates; the memo about receiving personal calls at work; how the respondent’s owner reacted when some employees quit; employees being told bad weather was not an excuse for not showing up for work; the incident where an associate was upset that his or her room was not properly prepared; the rate of employee turnover; the incident involving a fax related to another employee’s labour board complaint; and the receipt for the cost of a uniform.
23Paragraph 5 of the CAD of November 1, 2013, says:
The respondent shall file with the Tribunal and deliver to the applicant a witness list and witness statements for each witness on its list as soon as possible, but may wait to do so until the parties’ submissions on s. 34(2) of the Code have been received by the Tribunal and responded to.
24Given that the hearing is scheduled to begin on November 18, 2013, the respondent will be required to file and deliver its witness list and witness statements no later than November 14, 2013. If it fails to do so it may not be permitted to call any witnesses.
ORDER
25The Tribunal makes the following order:
a. the allegations in the Application of discrimination on the basis of ancestry, place of origin, and ethnic origin are dismissed as out of time;
b. By November 14, 2013, the respondent shall file and deliver its witness list and witness statements and if it does not the respondent may not be permitted to call any witnesses.
Dated at Toronto, this 12^th^ day of November, 2013.
“Signed By”
Ruth Carey
Member