HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Sjaarda Applicant

-and-

Ottawa Police Services Board Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: April 11, 2013 Citation: 2013 HRTO 599 Indexed as: Sjaarda v. Ottawa Police Services Board

APPEARANCES

Barbara Sjaarda, Applicant Christine Johnson, Counsel

Ottawa Police Services Board, Respondent David Patacairk, Counsel

Introduction

1This Interim Decision deals with the issues of whether the Application or parts of the Application should be dismissed on the grounds that the Application was filed more than one year after the incidents of alleged discrimination or because a grievance procedure has appropriately dealt with the substance of the Application.

2The Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on August 16, 2012. The applicant is a police officer and alleges that she has experienced discrimination in her employment because of sex since 2002. The Application details specific incidents of alleged discrimination which the applicant believes show systemic discrimination.

3The respondent filed a Response that asked the Tribunal to dismiss most of the allegations on the basis that most of the specific incidents occurred more than one year before August 16, 2012, when the Application was filed. In the alternative, the respondent submitted that some of the allegations should be dismissed because the substance of those allegations had been appropriately dealt with by a grievance proceeding.

4At the time the Application was filed, the applicant had filed another grievance relating to events in 2011. The respondents asked the Tribunal to defer further consideration of the Application pending the conclusion of that grievance. In Interim Decision 2012 HRTO 2184, the Tribunal denied the deferral request but directed that a preliminary hearing be held by telephone conference call to hear submissions on whether parts of the Application should be dismissed as either out of time or as having already been appropriately dealt with in another proceeding.

5Subsequent to the Interim Decision, the applicant filed two Requests for Order During Proceedings seeking to amend the Application to include events that have occurred subsequent to the filing of the Application which the applicant alleges show continuing discrimination and also show reprisal for having filed the Application.

6The telephone conference call was held on March 15, 2013. Only counsel for the parties participated.

Background

7The applicant alleges that she first experienced discrimination as a police officer in January 2002 when a Sergeant was transferred to the platoon to which she was assigned. She alleges that the Sergeant consistently made racist and sexist comments. Some of the sexist comments were directed at her personally. She raised her concerns about the Sergeant’s behaviour and comments. She alleges that she was subsequently discriminated against in part because she had raised concerns. This alleged discrimination included disadvantageous job transfers, unfair reprimands, denial of overtime and denial of preferred assignments and training opportunities.

8In about April 2003, the applicant made a formal workplace discrimination complaint to the Chief. An independent lawyer was hired by the Police Services Board to conduct an investigation. The investigation was concluded in April 2004. The applicant was not provided with a copy of the report. She was told that her specific allegations were not substantiated but that the lawyer had raised concerns about potential systemic discrimination issues.

9In February 2004, the Ottawa Police Association filed a grievance on the applicant’s behalf regarding her exclusion from consideration for a job transfer that she sought. In March 2004, on a without prejudice basis, the applicant was allowed the transfer.

10The applicant was transferred in April 2004 but alleges that she was subject to a probation requirement not imposed on others and that the probation was discriminatory.

11The grievance was withdrawn on May 19, 2004.

12The applicant alleges that on an occasion in June 2004 she was asked to stay behind and write tickets when other colleagues were assigned to active duty.

13The applicant subsequently then became pregnant, leading to a maternity leave from September 2005 to May 2006. She subsequently had two more maternity leaves, in June 2007-March 2008 and February 2009-January 2010. The applicant alleges that she experienced discrimination in relation to her pregnancies and maternity leaves.

14She alleges that in March 2005 she asked for a transfer to a station closer to home as an accommodation related to her pregnancy and that she was denied and was instead transferred to a station further away from home. She alleges that in April she requested a training program and was denied because she was going to be going on maternity leave. She alleges that when she returned from the first maternity leave she was not allowed to participate in a promotion process because she had taken a maternity leave and that she was denied a training opportunity.

15She alleges that when she returned from her second maternity leave, she was denied a training program for reasons related to her maternity leaves.

16The applicant alleges that after the third maternity leave she was denied training and promotion opportunities and that she was told that her maternity leaves were a factor.

17In March 2011, the applicant filed a grievance alleging discrimination because of taking maternity leaves. This was addressed by the employer in October 2011 with a commitment to provide appropriate counselling to the Staff Sergeant who was involved. Counsel were not sure about whether the grievance was withdrawn or considered settled.

18In April 2012, the applicant filed another grievance in regard to an alleged refusal of a temporary assignment. The employer responded to the grievance in August 2012, proposing a different assignment.

19As noted, in an earlier Interim Decision, the Tribunal denied the respondent’s request that the Application be deferred to the grievance procedure in respect of the April 2012 and/or the March 2011 grievance.

20On February 11, 2013, the applicant submitted a Request for Order During Proceedings asking that the Application be amended to include allegations of further discrimination and reprisal in respect of events that have occurred since the Application was filed. On March 4, 2013, the applicant filed another Request for Order During Proceedings making the same request in respect of further incidents of alleged discrimination and reprisal. The respondent opposed both of the Requests for Order During Proceedings. It was agreed that it was appropriate to deal with these Requests at the telephone conference call hearing.

Was there a “series of incidents”?

21Section 34 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.

22In this case, the applicant concedes that most of the allegations relate to incidents that occurred more than one year before August 2012, when the Application was filed. The applicant argues though that the alleged events since 2002 constitute a series of incidents within the meaning of section 34(1)(b).

23The respondent referred to Chintaman v. Toronto District School Board, 2009 HRTO 1225, in which the Tribunal Vice-chair commented:

As I interpret section 34 where a series of events is relied upon, a gap of more than one year between incidents in a series would in most cases interrupt the series in the absence of evidence of the considerations set out in section 34(2).

24In Pakarian v. Chen, 2010 HRTO 457 (at paragraph 25), the Vice-chair discussed what is necessary to establish that a series of events are sufficiently related that they constitute a series of incidents for the purposes of section 34(1)(b):

The dictionary definition of “series” is: “a number of things or events of the same class coming one after another in spatial or temporal succession” [Merriam-Webster online]. In applying the definition to the facts of this case, it is necessary to determine which events can be grouped together into a “class”, which for the purposes of an Application under the Code, must be defined in relation to discrimination. Therefore, the question to determine is whether the applicant has alleged a number of events relating to discrimination which can be said to have occurred one after another in temporal succession, and if so, when did the last such event occur.

25In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal commented (at paragraph 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?

26In the present case, the applicant alleges that there were a series of incidents that are of a similar nature in that they all involve allegations of discrimination on the basis of her sex. She also submits that the allegations are all tied together because the incidents in the 2002-2004 period, and then her formal complaint about those allegations, caused the respondent to view her as a “troublemaker” and that this perception in turn influenced and contributed to the subsequent incidents.

27The respondent submits that it would be significantly prejudiced if the applicant were permitted to bring allegations going back to 2002, ten years before the Application was filed. Several of the key actors are no longer employed by the respondent, records would be difficult to find and memories will obviously have faded.

28It appears to me that the incidents of alleged discrimination in the period 2002 to 2005 are of a different nature than the allegations subsequent to 2005. In the earlier period, the applicant alleges that a sergeant made sexist and racist comments. She alleges that she complained about this behaviour and that the fact that she complained caused her to be labeled as a troublemaker and that this in turn resulted in unfair or discriminatory decisions by the respondent that negatively affected her career. She then made a formal complaint and was not provided with a copy of the subsequent investigation which concluded in April 2004. In the same time frame, the applicant filed a grievance about a specific job transfer. She was subsequently granted the job transfer although she says that she was subject to a discriminatory probation provision. The grievance was withdrawn in May 2004.

29Except for an allegation that in June 2004 she was asked to stay behind and write tickets when other colleagues were assigned to active duty, the subsequent allegations appear to relate to allegations of discrimination arising out of the applicant’s three maternity leaves. Specifically, the alleged incidents in the period after 2005 all appear to relate to allegations that the applicant was denied training and career advancement and that she was told that the reasons for this included the fact that she had taken or was going to take maternity leaves.

30While allegations of discrimination because of pregnancy and maternity leave fall under the general category of alleged discrimination because of sex, for the purposes of this Application, I am not convinced that the incidents of alleged discrimination in the period before 2005 are sufficiently connected to the incidents of alleged discrimination after 2005 as to constitute a series of incidents for the entire period after 2002.

31I am therefore satisfied that there was a series of incidents for the purposes of section 34(1)(b), but that the series of incidents started in 2005.

32I am satisfied that the applicant is not permitted to bring the Application for the period from 2002 to 2005 pursuant to section 34(2). There is no apparent good faith explanation for the delay.

33I conclude that the applicant is not permitted to bring allegations about the incidents of alleged discrimination in the period 2002 to 2005. Subject to further submissions, she may however, be permitted to testify about those earlier incidents to give context to the incidents of alleged discrimination after 2005.

Have the grievance proceedings appropriately dealt with the substance of the Application?

34Section 45.1 of the Code provides:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

35In this case, there is a question of whether any or all of the grievance proceedings have appropriately dealt with the substance of the Application.

36The grievance that was filed in 2004 appears to have been allowed on review by the employer without a settlement or arbitration. The grievance in 2011 also appears to have been allowed with a commitment to speak to a Sergeant. The August 2012 seems to have been similarly dealt with.

37While some of the grievances raised allegations that have some factual overlap with the issues in the Application, in my view, it cannot be said that the grievances appropriately dealt with the Application or parts of the Application.

Requests to amend the Application

38The first Request for Order During Proceedings relates to allegations of discrimination and reprisal concerning events on December 12, 2012, and follow-up discussions in January 2013. The applicant went off work on a sick leave in January 2012 and counsel advised that she has remained off work.

39The second Request for Order During Proceedings relates to an application for four “tenure spots in Investigative positions” that the applicant submitted in late February 2013. She alleges that the applications were denied and that this shows continuing discrimination and reprisal.

40The matters raised in the two Requests for Order During Proceedings do not appear to have been the subject of grievances.

41The respondent submits that the two Requests should be denied because the applicant has not shown how she will establish that the matters to which they relate in fact raise provable allegations of discrimination contrary to the Code.

42I am satisfied that it is appropriate to allow the applicant to amend the Application to include allegations about what happened on December 12, 2012, and in the subsequent related discussions and also about her application for positions in late February 2013. These requests are made at an early stage of the process and there does not seem to be any potential prejudice to the respondent in respect of them.

Mediation

43Counsel agreed that it would be appropriate for the Tribunal to proceed to schedule a mediation session, pending my conclusions on these issues heard in the preliminary hearing.

44The Registrar will schedule a mediation session.

45I am not seized.