HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natalie Shaw
Applicant
-and-
CSH 921 Millwood Inc.
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Shaw v. CSH 921 Millwood Inc.
WRITTEN SUBMISSIONS
Natalie Shaw, Applicant
Kristin Bisbee, Counsel
CSH 921 Millwood Inc., Respondent
Pamela Leiper, Counsel
Introduction
1The applicant self-identifies as African-Canadian. She worked for the respondent as a part-time health care aide, beginning in October of 2009. She alleges that in February of 2010 the respondent refused to assign her shifts, and that this was part of a pattern of conduct by the respondent to favour employees who are White or of Filipino origin. She worked her last shift in April of 2010. On November 13, 2012 she filed an Application 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 race, colour, place of origin and ethnic origin.
2The respondent denies the allegations and has filed a Request to Dismiss on the grounds that the Application is out of time.
3In order to determine this issue it is necessary to hear evidence. The reasons for this are set out below. As a result, the Request is denied and a hearing on this issue will be scheduled.
background
4The applicant alleges that from the time she started working for the respondent she would be assigned four shifts per schedule, along with various occasional shifts when she was called to fill in for absent co-workers. She maintains that this changed in February 2010 when a new supervisor took over. The applicant alleges that only White or Filipino employees were then given shifts.
5The applicant maintains that she sought an explanation from the respondent by calling every month from June 2010 until December 2011, but that her calls were never returned. She alleges that she had a meeting with a manager in April of 2011 and was told that she was now classified as a casual employee, that she would no longer be automatically scheduled and that she would only receive shifts if the respondent called her.
6The applicant alleges that in October of 2011 she was looking for a new residence and required a letter confirming her employment. She maintains that she picked up the letter from the respondent on November 20, 2011 and was surprised that the letter stated that she had been employed by the respondent up to April 5, 2010. She alleges that this is when she found out that her employment had been terminated.
7The respondent states that part-time health care aides do not have set schedules or guaranteed hours. Scheduling is based on their availability and their seniority. The applicant had the lowest seniority, and failed to submit her availability for April 2010 and subsequent months. As a result she was not scheduled.
8The respondent alleges that it tried to contact the applicant by telephone repeatedly and failed. It sent the applicant a registered letter in January 2011 advising her that if she did not contact the respondent by the end of February the respondent would consider her to have resigned. The letter was returned to the respondent as undeliverable. The respondent then processed the applicant’s termination, including issuing a Record of Employment on March 11, 2011.
9The respondent maintains that the applicant did not make repeated efforts to contact the respondent. Rather, she only did so in March of 2011 to ask for a vacation pay cheque to be re-issued and in October of 2011 to ask for a letter confirming the dates of her employment. The respondent denies that there was a meeting with the applicant in April of 2011.
submissions
10The respondent argues that any allegedly discriminatory incidents occurred more than a year before the Application was filed. It argues that as the last shift the applicant worked was in April of 2010, any alleged refusal to schedule the applicant subsequent to that date would simply amount to a decision to maintain the alleged initial refusal. Further, it argues that if the applicant’s allegation that the respondent refused to answer her repeated calls is accepted, then such refusals do not constitute acts of discrimination. Finally, it argues that issuing a confirmation of employment letter to the applicant in October of 2011 does not constitute an act of discrimination. It maintains that the applicant could not seriously believe that she was employed by the respondent in November of 2011, when she had not worked a shift since April of 2010.
11The applicant’s position is that there is a series of separate but related incidents of discrimination, none of which is separated by a year, and that the last one occurs within a year of filing the Application. She argues that they are as follows:
Repeated efforts to speak to the respondent’s managers when she phoned between June 2010 and April 2011. She alleges that these were met with a promise by the respondent’s receptionist that she would get a call back, but never did. She argues that each of these promises is a separate incident of discrimination;
A meeting with the respondent’s manager in April of 2011. She argues that this resulted in a promise that she would be scheduled for shifts on a casual basis, but that none materialised. She claims that this promise and the failure to realise it are further separate incidents of discrimination; and
Communication of her termination in November of 2011 through a confirmation of employment letter. She argues that the respondent’s failure to tell her earlier that she was terminated was discriminatory and that the communication to her of this fact in November 2011 was another act of discrimination.
analysis and decision
12Section 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:
- (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.
13In this case the one-year period runs from November 13, 2011, which is one year before the Application was filed. None of the above events is separated from the next by a year. The issue to be determined is whether they are sufficiently linked to amount to a series of incidents of discrimination within the meaning of s.34(1)(b).
14The decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, provides a useful review of the Tribunal’s decisions on this issue and, at paras. 38-43, a framework of analysis for approaching such cases. The decision in Garrie notes at para. 40 that there is a need to examine whether a series of incidents involves fresh steps taken by the parties, each of which gives rise to a separate alleged breach of the Code. In this case the applicant alleges a course of conduct by the respondent in the form of a series of promises which had the effect of keeping her unaware until November of 2011 that she had been subject to an allegedly discriminatory termination. She maintains that all along she believed that she continued to be employed by the respondent. As I understand the applicant’s submissions, she also alleges that, as long as she continued to be employed, every time the respondent failed to schedule her this was a fresh act of discrimination.
15In order to determine this issue it will be necessary to hear evidence from the parties as to what happened, including whether there was a meeting in April of 2011 and what took place at that meeting, if it in fact occurred. For this reason, the respondent’s Request is denied.
16In addition to scheduling a hearing on this issue, it makes sense at the same time to conduct a summary hearing into the question of whether this Application has any reasonable prospect of success. Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
17Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:
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.
18Having reviewed the Application, it appears that the applicant may be unable to point to any evidence that would prove discrimination, in that it is not clear on the face of the Application that there is a link between the alleged failure to schedule the applicant and the Code grounds upon which the Application is based.
order
19The respondent’s Request is denied.
20The Registrar is requested to schedule a one-day summary hearing in person. The purposes of the hearing are to address the issues of delay and whether the Application has a reasonable prospect of success.
21A Notice of Summary Hearing will follow from the Registrar’s Office. No later than 14 days prior to the summary hearing the parties shall deliver to each other and file with the Tribunal copies of will-say statements setting out the anticipated evidence of the witnesses they intend to call, as well as any further documents or cases they intend to rely upon.
22The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.
23I am not seized.
Dated at Toronto, this 8th day of March, 2013.
“Signed by”
Paul Aterman
Vice-chair