Garces-Vinasco v. Counterpoint Counselling & Educational Cooperative Inc., 2013 HRTO 2055

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adolfo Garces-Vinasco Applicant

-and-

Counterpoint Counselling & Educational Cooperative Inc. Respondent

DECISION

Adjudicator: Maureen Doyle Date: December 12, 2013 Citation: 2013 HRTO 2055 Indexed as: Garces-Vinasco v. Counterpoint Counselling & Educational Cooperative Inc.

APPEARANCES

Adolfo Garces-Vinasco, Applicant Self-represented

Counterpoint Counselling & Educational Cooperative Inc., Respondent Allison Greene, Counsel

Introduction

1This is an Application filed 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 place of origin and ethnic origin. The applicant identifies himself as a Canadian citizen, of “Latino” ethnic origin and he identifies his place of origin as Colombia.

2The respondent denies having discriminated against the applicant.

3Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on May 31, 2013, directing that a Summary Hearing take place. The CAD directed that at the summary hearing the applicant would make argument about why his application should not be dismissed as having no reasonable prospect of success and would be required to point to evidence upon which he would establish a link between the respondent’s alleged actions and the ground alleged. Additionally, the CAD noted that it appeared that there may be untimely allegations in the Application and advised that the parties may also make submissions at the summary hearing on the jurisdictional issue of delay. The Summary Hearing was held by conference call and all parties participated.

DECISION

4For the reasons that follow, some allegations in the Application are dismissed for delay and the remainder of the Application is dismissed as I find that it has no reasonable prospect of success.

ANALYSIS

Application to the Facts

5The respondent is a non-profit organization, operating as a cooperative, providing counselling and educational services to assaulted women and abusive men.

6The applicant was employed on a part-time basis at the respondent, commencing in 2005, and ending in February, 2012. He makes several allegations with respect to his employment there:

• He alleges that when he suffered an injury in 2009, he was not eligible for benefits and was earning too little to qualify him to receive Employment Insurance benefits, and he alleges that this was for discriminatory reasons;
• He alleges that a co-worker called him a misogynist in 2009;
• He alleges that when he applied to join the cooperative as a member, it took several months to process his application for membership. His application for membership was approved in 2010;
• He alleges that he did not receive statutory holiday pay to which he feels he was entitled until September 2010;
• He alleges that another employee harassed him, was uncommunicative regarding workplace matters, and criticized his accent and embarrassed him in front of clients. He also alleges that she referred to his “Latino way of doing things”. He alleges that though mediation was attempted between him and this co-worker, the respondent did not follow up when the mediation failed. Other than alleging that the co-worker said on June 23, 2010 that the men in the client group did not understand what he said, he does not provide dates for these occasions, but agrees that they occurred more than one year prior to the filing of his Application;
• He alleges that on occasions in the past, he had been asked to perform “paperwork” but had not been paid the same as others. He contrasts this with what he appears to consider the correct pay, which was offered to him in October 2011 for performing certain administrative tasks. He does not provide dates or particulars for the previous occasions, but agrees that the earlier period occurred more than one year prior to the filing of his Application;
• He alleges that the respondent often assigned him to work as many hours as full-time employees though he did not get paid as much as full-time employees, and he alleges that the respondent attempted to “block” him from receiving a full-time job. He alleges that this was for discriminatory reasons. In particular, he alleges that when a full-time individual resigned in the summer of 2011, a full-time position was posted in August 2011, facilitating the Spanish-speaking men’s group. He states that he expressed an interest in the position and that the respondent employer advised him to participate in the formal hiring process. He did not participate in the formal hiring process and submit an application, but left on a leave out of the country to tend to an ill relative. He alleges that upon his return, in October 2011, the respondent employer advised him that the position was being split in half, and he was offered the administrative duties associated with the position. He alleges that the individual who was awarded the other half of the job was Chilean, was not a cooperative member, and did not participate in the formal hiring process, but was a friend of the person awarding the job. He alleges that Chileans receive preferential treatment by the respondent. He states that though the employer has indicated that there were complaints about his manner with clients, there were none except for an incident in which he advised an individual to turn off his cell phone.
• He also alleges that the individual who was awarded the other half of the position was not as competent as he. Accordingly, he asserts that he was well qualified to perform the full job and alleges that the only reason it was split into two, instead of remaining a full-time position, was to prevent him from being awarded the position. He alleges that none of the other jobs as group facilitators are split into two, and he alleges that splitting this position in two was discriminatory.
• He alleges that when he ultimately resigned from his employment at the respondent, he was not paid severance pay in accordance with the Employment Standards Act, but that an individual who resigned in 2006 and an individual who resigned in 2009 received severance pay.
• He alleges that on his last day at work, his supervisor was not there to receive his keys and documents, and he had to deliver them to someone else. He asserts that it was disrespectful of his supervisor not to be there, and he alleges it was discrimination.

DELAY

7Section 34 states, 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.

8All of the allegations, with the exception of the allegations regarding the respondent’s decision to split the Spanish men’s group facilitator position in two, the respondent’s decision not to pay him severance pay, and the fact that his supervisor was not in attendance for his last day at work, pre-date the year prior to the filing of his Application.

9According to section 34(1)(b) of the Code, an allegation prior to the one-year period before the filing of the Application is timely if it was part of a series of events. Neither party has made submissions regarding whether the applicant’s allegations may be considered part of a series of events.

10In considering whether allegations may be considered part of a series of events, the Tribunal has generally found that events are not part of a series of incidents if there is a break in the temporal connection between them. I accept and agree with the reasoning in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series”.

11In determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues. See Aberdeen v. University of Toronto, 2010 HRTO 2514.

12The earlier allegations here relate to a delay in processing his application to become a member of the cooperative, his compensation, and comments made by a co-worker. He has not provided dates for all of the earlier allegations, and it is not possible to make a determination regarding the gap between the alleged incidents, but in any event, I find that the first timely allegation, namely the respondent’s decision to split the position in two and to offer the applicant the administrative duties only, is a discrete issue from those raised in the earlier allegations. Accordingly, I do not find that there is a series of incidents.

13As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

14The applicant must establish that the delay was incurred in good faith. This is because the Tribunal’s power to hear and determine human rights Applications is based on the Code and the Code clearly states, in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith.

15The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner.

16At the summary hearing, the applicant submitted that even if the earlier incidents are out of time, it does not mean that they did not happen. He submitted that these allegations were submitted out of time as he had only latterly come to learn that he “had to protect himself”.

17In 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. See, for example, Klein v. Toronto Zionist Council 2009 HRTO 241. 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 seek to pursue a human rights claim.

18While the applicant has indicated that he has come to appreciate the fact that “he must protect himself”, I do not find that he has sufficiently explained why he was not able to file his Application within the required one year time frame. I find, based on the information before the Tribunal, that the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was not incurred in good faith as required under s. 34(2) of the Code.

19Given the finding that the delay was not incurred in good faith, it is not necessary for me to consider the question of whether anyone has been substantially prejudiced by the delay.

20I find that the circumstances in subsection 34(2) do not apply to the facts before me. The allegations in this Application which relate to the period more than one year prior to the filing of the Application cannot proceed under subsection 34(1) of the Code and are therefore dismissed.

Summary Hearings

21In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

22In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Timely Allegations

23It is clear that the applicant feels aggrieved by the actions of the respondent. As the CAD in this matter stated, however, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground.

24The applicant is of the view that he should have been awarded the full-time position in the autumn of 2011, and feels that he splitting of the position was targeted at him, in order to prevent him from being awarded a full-time position, for reasons contrary to the Code. In fact, however, he has essentially asserted that he was treated the same way as was an individual from Chile: he did not apply for the position and go through the formal hiring process and yet was offered one half of the position to perform. While she was not a cooperative member, and while he indicates that the respondent is committed to providing employment for its members, he has not indicated that only cooperative members are hired as employees. He has not pointed to evidence of differential treatment, nor has he pointed to what evidence he would rely upon to tie his assertion of discrimination to the grounds he has cited.

25Further, the applicant has alleged that he did not receive severance pay when he resigned from his employment, but that someone else received such payment in 2006 and another individual received it in 2009. He has not, however, indicated what evidence he would use to establish his allegation that the respondent’s failure to pay him severance pay when he resigned was discriminatory on the basis of ethnic origin or national origin.

26Finally, he has alleged that it was both disrespectful and discriminatory of his supervisor not to be in attendance on his last day of work to receive keys and documents from him. Again, however, he has not pointed to evidence he would rely upon to establish a link between this allegation and the grounds cited.

27As the Tribunal stated at paragraph 25 in Preddie v. Saint Elizabeth Health Care 2011 HRTO 2098, the applicant must do more than make bald assertions in order to establish a breach of the Code:

I accept the argument of the applicant’s counsel that discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or is reasonably available to her can show a link between the events alleged and the alleged prohibited ground. I cannot find, based on the Application and the submissions of the applicant and her counsel, that there is a reasonable prospect that the applicant can prove that she was discriminated against by the respondents based on her race and colour.

28The applicant has not pointed to evidence he could rely upon to establish that he was treated differently as compared to others because of the grounds he has cited. Without such evidence, his Application cannot succeed.

29I find that there is no reasonable prospect that the Application will succeed and it is dismissed.