Armstrong v. Ontario (Revenue), 2013 HRTO 347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robin Armstrong

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Revenue and the Ministry of Finance, Jennette Frost, Helmut Zisser, Marion Crane

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 28, 2013

Citation: 2013 HRTO 347

Indexed as: Armstrong v. Ontario (Revenue)

APPEARANCES

Robin Armstrong, Applicant

Katherine Cotton, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Revenue and the Ministry of Finance, Marion Crane, Helmut Zisser, Respondents

Roslyn Baichoo, Counsel

Jennette Frost, Respondent

Ian Werker, Counsel

1This is an Application filed on September 2, 2011 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 sex.

2The Tribunal issued an Interim Decision on August 3, 2012 dealing with the respondent Ministry's Request to dismiss the Application on the basis of section 45.1 of the Code (2012 HRTO 1527). In the same decision, the Tribunal directed that a conference call be scheduled to deal with the respondent Frost's Request to dismiss the Application under section 34 of the Code on the basis that the allegations against her are untimely. In addition to their oral submissions, the parties filed written submissions on the timeliness issue.

3Section 34 (1) and (2) of the Code state:

(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 is 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.

4The applicant argues that the Application is not out of time and that his allegations against the respondent Frost, which span the period from September 2007 to March 2011, constitute a series of incidents within the meaning of the Code.

5The applicant argues that Schedule "D" of his Application sets out approximately 75 incidents, all of which occurred in the latter part of 2010 and early 2011, and therefore fall within the 12 months prior to the filing of the Application. The applicant argues that these more recent events are part of the same pattern of discrimination which he allegedly experienced prior to September 2, 2010, and therefore form a series of incidents within the meaning of the Code.

6The respondent Frost argues that the essence of the applicant's allegations is that he was passed over for advancement by the respondent Frost in 2007 or 2008. In June, 2010, the applicant filed a complaint under the Workplace Discrimination and Harassment Policy ("WDHP") against the respondent Frost and was therefore aware of and actively pursuing a remedy for his allegations of discrimination. The respondent argues that the applicant has attempted to portray his own assumptions, inferences and conclusions about the workplace as a series of incidents in an effort to extend the time frame for the filing of his Application.

7The applicant alleges that his supervisor engaged in a pattern of discriminatory conduct toward him from September 2007 to March 2011 when she ceased to be his supervisor. He has made a number of allegations which fall within the 12-month time period prior to the filing of his Application. The respondent argues that those incidents do not, on their face, support an inference of discrimination. The applicant argues that he has a different interpretation of these incidents and that taken together they form a pattern of discriminatory conduct. For example, an email may not be discriminatory on its face, but the applicant wishes to argue that he was left off the list of recipients which is an example of the pattern of conduct he is complaining about.

8I was urged to look at the substance of his allegations and not the applicant's characterization of those incidents and that is precisely what I have done. Whether or not his assumptions, inferences and conclusions are correct and the applicant is able to tie these incidents to a prohibited ground, is a decision to be made by the presiding adjudicator with the benefit of evidence and assessments of credibility. Fundamentally, the applicant alleges a series of similar incidents against the same supervisor, the last of which took place in February 2011, which come to together to form a pattern of allegedly discriminatory conduct. This pattern is alleged to have contributed to a poisoned work environment. I therefore find that these allegations relate to a series of incidents within the meaning of the Code.

9Given my finding, it is not necessary to consider the applicant's alternative argument that he has a good faith reason for any delay in filing his Application.

10This is an Interim Decision of the Tribunal and as such, the issues addressed here may be the subject of further consideration, where appropriate, by the presiding adjudicator conducting a hearing on the merits.

11I am not seized.