HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrene Bartley
Applicant
-and-
Hamilton Urban Core Community Health Centre and Jesse Brooks
Respondents
INTERIM DECISION
Adjudicator: Alison Renton Date: February 20, 2013 Citation: 2013 HRTO 279 Indexed as: Bartley v. Hamilton Urban Core Community Health Centre
APPEARANCES
Andrene Bartley, Applicant Robert Garay, Counsel
Hamilton Urban Core Community Health Centre and Jesse Brooks, Respondents Wade Poziomka, Counsel
Introduction
1This is an Application filed on October 14, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sexual solicitation.
2The respondents filed a joint Response as well as a Request for Summary Hearing (the “Request”) requesting that the Application be dismissed as having no reasonable prospect of success. The applicant filed a Response to a Request for Order During Proceedings (“RFOP”) objecting to the respondents’ Request, as well as a RFOP seeking to amend her Application to include the ground of race. This was not opposed by the respondents.
3By Interim Decision, 2012 HRTO 107, the Tribunal granted the applicant’s request to amend her Application to include the ground of race. The Tribunal also noted that it appeared that there may be an issue of whether some or all of the incidents alleged in the Application form a “series of incidents” within the meaning of the Tribunal’s jurisprudence and whether some or all of the allegations in the Application may be untimely. The Tribunal provided the respondents an opportunity to file an amended Response and the applicant to file a Reply and directed the parties to make submissions on whether some or all of the allegations should be dismissed because of delay.
4Both parties filed submissions addressing the potential delay issue. Following receipt of the submissions, the Tribunal issued a Case Assessment Direction dated February 28, 2012 granting the respondents’ Request. The Tribunal also directed that the parties also address the issue of delay during the summary hearing.
5A Summary Hearing was scheduled for May 23, 2012 (the “hearing”) and both parties participated. During the hearing, several new issues were raised by the applicant, specifically the allegation that the personal respondent called her a “fucking bitch” and that the corporate respondent failed to investigate into her concerns of harassment and discrimination, such that the Tribunal gave the parties the opportunity to file additional submissions following the hearing. Further, the Tribunal issued a Case Assessment Direction dated October 19, 2012 giving the parties an opportunity to comment on the Tribunal’s recently released reconsideration decision in Garrie v. Janus Joan Inc., 2010 HRTO 1955 (“Garrie”) which considered a “series of incidents” within the meaning of section 34(1) of the Code. Both parties filed submissions about Garrie.
the applicant’s submissions
6In the Application, the applicant alleges that from August 2007 until December 2008, the personal respondent sent her a number of Facebook messages that she alleges are sexually suggestive, and in which she alleges the personal respondent called her a black Christian woman, alleged that she only wanted to date white men and stated his preference for dating black women. She produced the Facebook messages to the respondent and the Tribunal. The applicant alleges that she told her manager about the personal respondent’s inappropriateness on December 30, 2008, but that her manager failed to investigate. Subsequent to that, the applicant alleges that the personal respondent’s harassment towards her expanded to the physical workplace where it continues to the present day.
7Further in the Application, the applicant claims that in March 2009, the personal respondent alleged that the applicant called him fat, which she denies. In the summer and fall of 2010, he would walk by the applicant and grunt, mumble expletives, threaten her family, make threatening slicing motions with his hands to this throat, and threaten to have her terminated as he is the son of the corporate respondent’s executive director. On October 12, 2010 and October 28, 2010 she again told her manager about the personal respondent’s behaviour towards her, but her manager failed to investigate. She identifies September 22, 2011 as being the last incident in her Application, and alleges that the personal respondent “continues to approach [the applicant] at work and grunt, mumble expletives at her, and threaten to get her fired because of who his mother is”.
8During the hearing, for the first time, the applicant also alleged that the personal respondent repeatedly, from August 2007 to September 2011, called her a “bitch” or a “fucking bitch”, made other sexual comments to her and other females, some of whom were other employees and some of whom were clients, and created a poisoned working environment for the applicant. “Fucking bitch”, the applicant asserts, constitutes sexual harassment under the Code. When the Tribunal pointed out that sexual harassment was not a ground upon which the Application was filed, the applicant submitted that in her mind sexual harassment and sexual solicitation “…are one and the same” and she would seek to amend her Application to include this ground. As the personal respondent’s mother is the executive director of the corporate respondent, the applicant submits that the personal respondent’s threats to have the applicant fired constitutes harassment under the Code. The applicant submits that her Application has a reasonable prospect of success and should proceed.
9Further, the applicant submits that all of the allegations in her Application are timely. With the exception of the last alleged incident of September 22, 2011, the applicant could not provide all the times or dates that the personal respondent made inappropriate comments to her. However, she alleges that comments, grunting, and mumbling expletives were made consistently, “almost on a weekly basis”, from August 2007 until September 2011 when the Application was filed and the comments stopped. Given the ongoing frequency of the alleged comments, and the fact that there has not been a gap of a year or more between these incidents of sexual harassment, the applicant submits that the allegations are part of a “series of incidents” within a meaning of section 34(1) of the Code. Because the applicant asserts that her allegations are timely, she stated that she is not advancing any good faith reason for the delay. In the alternative, the applicant alleges that the September 22, 2011 allegation is timely as are all allegations from October 14, 2010 thereon.
10In materials filed after the hearing, the applicant filed a RFOP seeking to amend her Application to include “the ground of Sexual Harassment as well as the ground of failure to investigate”. In her submissions in support of the RFOP , the applicant alleges from December 2008 to September 22, 2011 the personal respondent called her a “bitch” or a “fucking bitch” and that on December 30, 2008, October 12, 2010, October 28, 2010, November 1, 2010 and August 11, 2011 she reported the personal respondent’s conduct to the corporate respondent. The applicant submits that the corporate respondent failed to investigate into her concerns and that this amounts to a violation of the Code.
the respondents’ submissions
11The respondents submit that the Application should be dismissed as having no reasonable prospect of success. Calling someone fat, mumbling or swearing at them, and/or stating preferences to date black men or women does not violate the Code. Calling someone a “fucking bitch” also does not amount to sexual solicitation or sexual harassment or a violation of the Code on the ground of race. The respondents provided several decisions, including Donna Race v. General Motors of Canada Limited, [2011] O.H.R.T.D. No. 24 and Anderson v. Angell, [2006] B.C.H.R.T.D. No. 26 in which human rights tribunals, including this Tribunal, found that calling an applicant a “bitch” did not constitute a violation of the Code. The respondents also distinguished the applicant’s case law and claimed, in Canada v. Axiom NDT Corporation, [2010] O.L.R.D. No. 231 that the Ontario Labour Relations Board did not find that the word “bitch” violated the Code, and in Robert Gillam v. Waschuk Pipeline Constructions Ltd. (2011), 94 C.C.E.L. (3d) 152 (Sask. Q.B.) that while the Court found that sexual harassment occurred, this was based upon a male employee calling female employees “bitch” as well as other discriminatory names.
12Alternatively, the respondents submit that the only allegation that may be Code-related is from 2008, from one of the Facebook entries, but that allegation is untimely as are all subsequent ones. With the applicant confirming that she is not advancing a good faith reason for delay in raising that allegation, the Application should be dismissed for delay.
13The respondents also submit that the allegations made by the applicant do not constitute a “series of incidents” within the meaning of section 34(1) of the Code and as addressed in Garrie. The applicant’s later allegations are not of the same character as her earlier allegations and there is a gap of more than one year between allegations. The Application ought to be dismissed as being untimely.
14Alternatively, the respondents submit that the only allegation that may be timely is the “fucking bitch” comment allegedly made by the personal respondent to the applicant in September 21, 2011. With respect to the applicant’s allegations that the personal respondent called her a “bitch” repeatedly over a long period of time, the respondents submit that no dates of those alleged comments have been provided apart from September 21, 2011.
15With respect to the applicant’s RFOP seeking to amend her Application, the respondents note that the Application was initially based upon sexual solicitation and that the Tribunal permitted the applicant to also include the ground of race in an earlier Interim Decision (2012 HRTO 207). The respondents oppose the Tribunal again permitting the applicant to amend her Application yet again to rely upon additional grounds, and further submit, as noted above, that the allegation “fucking bitch” or “bitch” does not amount to discrimination on the basis of sexual solicitation, race or sexual harassment.
16As for the applicant’s allegation that the corporate respondent failed to investigate into her allegations, the respondents strenuously dispute this. They point to their Response in which details about the investigations that they conducted into the applicant’s allegations about the personal respondent took place in 2008, 2010 and 2011, and note that following the 2011 investigation, the personal respondent was disciplined. Further, they submit that there is no stand-alone obligation under the Code for a corporate respondent to investigate into claims of harassment or discrimination that have no underlying Code allegation. They also point out that the “fucking bitch” allegation came to the applicant’s attention following the investigation that the corporate respondent conducted.
analysis
The Timeliness of the Application
17Section 34(1) of the Code provides:
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.
18In Garrie, a panel of 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?
19Further, at paras. 39 to 42, the Tribunal held:
First, as the Divisional Court stated in Visic, supra, 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, supporting 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.
20Based upon her Application and subsequent submissions, the following is a chronology of the applicant’s allegations against the respondents:
From 2007 until December 2008 the personal respondent sent her inappropriate and discriminatory Facebook messages;
In December 2008, the applicant told her manager about the personal respondent’s Facebook messages, but her manager failed to investigate them;
In March 2009, the personal respondent alleged the applicant called him fat;
In the summer and fall of 2010, the personal respondent would walk by the applicant and grunt, mumble expletives, threaten her family, make threatening slicing motions under his throat and threaten to have her terminated;
On October 12, 2010, October 28, 2010, and November 2, 2010, the applicant raised allegations about the personal respondent’s conduct with her manager, but her manager failed to investigate them;
From August 2007 until September 2011 “almost on a weekly basis”, the personal respondent called her a “bitch” or a “fucking bitch”, grunted, and mumbled expletives towards her and made other sexual comments to her and other females;
From December 2008 to September 22, 2011, the personal respondent called the applicant a “bitch” or “fucking bitch”;
On August 11, 2011, the applicant reported the personal respondent’s conduct to the corporate respondent, but they failed to investigate;
On September 21, 2011, the personal respondent called the applicant a “fucking bitch”, grunted, mumbled expletives at her and threatened to have her fired; and
The corporate respondent failed to investigate into her concerns.
21When the Application was filed, and prior to the hearing, there was a gap of more than one year between the allegations from March 2009 to the “summer and fall of 2010”. This temporal gap does not fall within a “series of incidents” within the meaning of section 34(1). See Garrie at para. 30. The applicant has submitted that she is not advancing any good faith reason for the delay in raising them. Accordingly, the March 2009 allegations, as well as the Facebook allegations from 2007 to December 2008, are not timely and are dismissed.
22During the hearing the applicant alleged that from August 2007 until September 2011 “almost on a weekly basis”, the personal respondent, amongst other things, mumbled expletives at her. In her submissions filed after the hearing, the applicant claimed that the afore-mentioned conduct occurred from December 2008 until September 22, 2011. The applicant confirmed that she is not relying upon a good faith explanation for any delay in filing her Application. She provided no explanation as to why her allegations on this issue changed from the summer and fall of 2010 to August 2007 to September 2011 or December 2008 to September 22, 2011 on “almost a weekly basis”, why the timeframe of these allegations have broadened, including pre-dating and post-dating the dates contained in her Application, and why these dates were not previously included in her Application given that they allegedly commenced years before the Application was filed. During the hearing, the applicant submitted that she could not be more precise about the date of the allegations other than they were “almost weekly”.
23It appears that the applicant is trying to “correct” her Application by making such allegations timely so that they would fall within a “series of incidents” within the meaning of section 34(1) and I will not permit the Application to be amended as such. In the absence of any explanation as to why her allegations have become broadened and now pre-date and post-date 2010, and why the dates are different between her materials and submissions made during the hearing, and without any specific dates or details about these allegations, I find that the allegations from either August 2007 or December 2008 until September 2011 pertaining to the personal respondent’s conduct cannot be relied upon, apart from the allegations contained in the initial Application about the fall and summer 2010 and the allegation pertaining to September 21, 2011. In my opinion, it is unfair for the respondents to respond to such allegations which, apart from allegedly being “weekly”, lack particularity including locations and dates. This is more significant, in my opinion, because the Application has already been amended once, these allegations arose during the hearing and the applicant still cannot particularize these allegations.
24With respect to the applicant’s allegations about the personal respondent’s conduct from the “summer and fall of 2010”, once again, the allegations are not particularized about the timing of the personal respondent’s conduct. As the applicant alleges that she raised these allegations with her manager in October and November 2010, and because the applicant was aware that delay was an issue during the hearing, this suggests, to me, that the allegations about the personal respondent’s conduct pre-dates October 12, 2010. Accordingly, her allegations are more than a year before her Application was filed and in the absence of good faith, are out of time.
25The applicant also alleges that she raised her concerns with her manager on October 12, October 28 and November 2, 2010, who allegedly failed to investigate into them. Obviously the October 28 and November 2, 2010 allegations are within the one year limitation period, but the October 12, 2010 alleged failure to investigate is not. Irrespective of the timing of the alleged failure to investigate, the allegations about which the applicant told her manager are beyond the one year limitation period. The Tribunal has stated that it is the date that the applicant discovers the potential Code violation which triggers the mandatory one year limitation period. See Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23.
26The Tribunal has held that pursuing one’s right in other venues, including internal investigations, does not constitute good faith in delay cases. In SB v. Toronto (City), 2012 HRTO 2018 (“SB”), at paras. 34 to 35, the Tribunal held:
I also need to consider that, in the context of determining whether delay in filing an application has been incurred in good faith, this Tribunal has repeatedly held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities or waiting for the result of an internal investigation: see Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; and Foley v. CAW-Canada Local 222, 2011 HRTO 1224.
While in those cases, it does not appear that the applicant had raised a timely allegation that the respondent had failed in its duty to appropriately respond to a reported allegation of discrimination or harassment, the underlying message behind these cases is that an applicant needs to take timely steps to file an application regarding alleged discrimination or harassment and should not wait for the conclusion of an internal investigation. It would be ironic, to say the least, if an applicant could circumvent this jurisprudence simply by raising an allegation that a respondent did not take appropriate steps to respond to the alleged discrimination or harassment and thereby make this latter allegation part of a “series of incidents” that encompasses the underlying discrimination and harassment allegations, and thereby make them timely. This in my view would be an absurd result.
27I agree with the Tribunal’s comments in SB. The applicant may not circumvent the mandatory limitation period in section 34(1) of the Code by relying upon allegations of failure to investigate as a series of incidents to get within the mandatory one year limitation period. Accordingly, apart from the September 21, 2011 allegation, the remaining allegations raised in the Application, during the hearing, and subsequent to the hearing, are dismissed due to delay.
reasonable prospect of success
28Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
29In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
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.
30Both parties filed case law with the Tribunal in which the words “bitch” and “fucking bitch” were found to violate or not violate the Code. In my careful review of these decisions, and my review of the respondents’ position that these words have become, over time, more generic, non-discriminatory expressions, I find that whether or not the words “bitch” and “fucking bitch” amount to a violation of the Code depends on the context in which they are stated. At this summary stage, no evidence has been called to explain the context in which the alleged words were said and in my opinion this is required before the Tribunal can determined whether or not the words, if uttered, violate the Code.
31With respect to the applicant’s assertion that the corporate respondent failed to investigate into the alleged September 21, 2011 incident, as indicated in the Response and attachments to it, clearly this is not accurate given the communications between counsel about the investigation and the fact that the applicant’s awareness of what the personal respondent said to her on September 21, 2011 appears to arise from the investigation. The applicant’s broad allegation that the corporate respondents failed to investigate, by itself and in this context, would result in the Tribunal determining that such allegation had no reasonable prospect of success.
32However, subsequent to the hearing, the applicant filed her RFOP in which she alleges not just a failure to investigate, but that the corporate respondent did not have a “proper complaint mechanism” in place until after the Application was filed, that “proper training” was not provided to employees and management of the corporate respondent, and further, that the corporate respondent did not provide her with a reasonable resolution of her allegations. These amendments are being allowed as they were raised in a timely manner.
33Accordingly, I am not satisfied that there is no reasonable prospect of success with respect to the allegations pertaining to the September 21, 2011 incident, along with the allegation that the respondent failed to investigate that incident, specifically with respect to the points raised in para. 32 above.
34Since the parties have agreed to mediate, this Application will be placed into the queue to be scheduled for mediation.
35I am not seized with respect to this matter.
Dated at Toronto, this 20th day of February, 2013.
”signed by”
Alison Renton
Vice-chair