Whitlow v. Ontario (Government Services), 2013 HRTO 2108

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rodney Whitlow

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the

Minister of Government Services

Respondent

DECISION

Adjudicator: Paul Aterman

Date: December 20, 2013

Citation: 2013 HRTO 2108

Indexed as: Whitlow v. Ontario (Government Services)

WRITTEN SUBMISSIONS

Rodney Whitlow, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of the Environment, Respondent

Jennifer Richards, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant self-identifies as Aboriginal. He has been a public servant for 25 years and works in the Aboriginal Affairs Branch of the respondent ministry. He alleges that a now former Director of the branch, who is not Aboriginal, was appointed to that position without there being a job posting or a competition. He states that this amounts to a discriminatory choice, as he and other qualified Aboriginal public servants were precluded from competing for the position.

3In Interim Decision 2013 HRTO 1821 the parties were requested to make submissions on the issue of whether the Application should be dismissed for delay. The reason for this is that the Tribunal has no jurisdiction to deal with an Application that falls outside the one year timeline prescribed by s. 34 of the Code unless it is satisfied that any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. In this case the Application was filed on May 10, 2013. The respondent takes the position that the allegedly discriminatory action occurred more than two and a half years earlier, in October of 2010, and that the applicant was made aware of it at that time.

4For the reasons that follow I conclude that the Application was brought more than a year after the allegedly discriminatory incident. I also conclude that the applicant has not shown that the delay in filing the Application was incurred in good faith. As a result the Application is dismissed.

background and positions of the parties

5In October of 2010 the then Director of the Aboriginal Affairs Branch, Brian Nixon, went on an assignment to another department. He was replaced by Ms. Hennessey. The staff of the branch, including the applicant, were informed of this by an October 25, 2010 email from the Assistant Deputy Minister. The email does not indicate whether Mr. Nixon’s departure is temporary or permanent nor whether Ms. Hennessey’s appointment is temporary or permanent.

6Almost a year later Mr. Nixon returned to the department, but not to his previous position. Staff, including the applicant, were informed by email on October 12, 2011 that Mr. Nixon would be working in a different branch of the department. On October 17, 2011 Ms. Hennessey was appointed on a permanent basis to the directorship in the applicant’s branch. This was communicated to her in a letter of offer but was not announced to the staff.

7Ms. Hennessey was appointed in accordance with the respondent’s Talent Management Program. The respondent indicates that its practice is not to announce when a temporary assignment is made into a permanent one using this procedure, as this is a purely administrative matter.

8The applicant does not dispute that this is so, but he says that this process is not transparent and the lack of transparency can, and in this case did, serve as a cover for discriminatory choices.

9The applicant alleges that when Mr. Nixon returned from his assignment in another department, he expected him to come back to his original position as the Director of the applicant’s branch, not that he would return to the department but start work in another branch.

10The applicant claims that in the spring of 2011 he and others raised concerns about issues in the workplace that fell outside the scope of the respondent’s Workplace Discrimination and Harassment Policy. The applicant does not explain what those issues were, but says that when the then acting Assistant Deputy Minister announced his intention to address these issues in November of 2011, the applicant expected that this would include examining “the recruitment of a qualified Director in a fair and openly communicated process”.

11When a consultant was appointed to look into the workplace issues the applicant voiced his concerns to the consultant about the way in which Ms. Hennessey was appointed. The consultant issued an interim report in October of 2012. The applicant alleges that the interim report was the first time in which Ms. Hennessey’s permanent appointment to the Director position was communicated to the staff in writing.

12In December of 2012 the applicant asked the Office of the Integrity Commissioner of Ontario to determine whether Ms. Hennessey’s appointment was an instance of wrongdoing. He says that the Integrity Commissioner determined that this was outside of her mandate and referred him to the Tribunal.

13The applicant argues that his efforts to pursue his concerns through the channels outlined above indicate that he was acting in good faith.

analysis

14Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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.

15In this case the Application was filed on May 10, 2013, well after the one year time limit for filing, which expired on October 24, 2011, one year after the alleged incident of discrimination on October 25, 2010.

16Although the applicant has not expressly argued that he did not know of the alleged incident of discrimination until later, I infer from the way he has set out the sequence of events that this is what he is saying.

17The Tribunal may allow an Application filed more than a year after an incident of discrimination to proceed if it is satisfied that the applicant really did not know of the alleged discrimination at the time. However, this is not the same as an applicant having a concern that discrimination has occurred and waiting to gather more information before filing an Application. In Klein v. Toronto Zionist Council, 2009 HRTO 241 the Tribunal stated as follows at para. 23:

The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

18If the applicant did not already have concerns that the appointment of Ms. Hennessey was discriminatory when it was announced on October 25, 2010, then, by his own account, he did by October 12, 2011 when it was announced (contrary to the applicant’s expectation) that Mr. Nixon would be returning to the department but not to his old position. At that point Ms. Hennessey continued as Director.

19Even if I were to accept that he did not believe her appointment was discriminatory by that time, then he certainly held that view by November of 2011 because he states that he expected the inquiry into workplace issues to include an examination of how she was appointed.

20By the applicant’s own account he felt there was something wrong with Ms. Hennessey’s appointment well over a year before he filed this Application. The fact that it may have been confirmed by what the consultant wrote in his interim report in October of 2012 would only serve to support his earlier suspicion. Applying the reasoning in Klein, cited above, I conclude that the applicant believed that discrimination had occurred well over a year before he filed this Application but that he waited and gathered more evidence to support his suspicion.

21Was the applicant’s delay in filing an Application incurred in good faith? I conclude that it was not.

22The Tribunal has set a high onus on applicants to demonstrate that a delay was incurred in good faith (see Klein, cited above).

23The applicant’s good faith argument appears to be based on his assertion that he was trying to address this matter through less formal means than the filing of an Application. This included pressing for an internal inquiry and raising the issue with the Integrity Commissioner.

24The Tribunal has held that choosing to pursue other proceedings before initiating an Application is generally not sufficient to justify a delay under the good faith exception (see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670).

25In my view this reasoning applies here. The applicant has not explained what stopped him from filing an Application within time while simultaneously pursuing these other routes. The applicant has not advanced any other explanations that might bring his delay in filing within the good faith exception. I find that he has not shown that the delay was incurred in good faith.

26Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (see: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

order

27The Application is dismissed for delay.