HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jerald Lodge on his own behalf and on behalf of Edwin Agawin and Michael Herman
Applicants
-and-
Toronto Star Newspapers Limited
Respondent
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Lodge v. Toronto Star Newspapers Limited
APPEARANCES
Jerald Lodge, Edwin Agawin and Michael Herman, Applicants
Jerald Lodge, Representative
Toronto Star Newspapers Limited, Respondent
Alison Adam and Phillipa Whitehead, Counsel
Communications, Energy and Paperworkers Union of Canada, Local 87-M Southern Ontario Newsmedia Guild (SONG), Proposed Intervenor
Adrienne Lei, Counsel
Introduction
1The applicant, Jerald Lodge, filed this Application on August 11, 2011, under section 34(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on his own behalf, and, under section 34(5) of the Code, on behalf of Edwin Agawin and Michael Herman. The Application alleges discrimination with respect to employment because of age and association with a person identified by a Code ground. This Decision follows a Summary Hearing.
BACKGROUND
2In the Application, the applicants indicated that they were members of a union at the time of the alleged discrimination. The Tribunal therefore sent notice of the Application to the applicants’ union, Communications, Energy and Paperworkers Union of Canada, Local 87-M Sothern Ontario Newsmedia Guild (SONG) (the “union”). On November 10, 2011, the union filed a Request to Intervene.
3On November 15, 2011, the respondent filed a Request for Summary Hearing, asking that the Application be dismissed on the basis that it has no reasonable prospect of success for the following three reasons: (i) delay within the meaning of section 34(1) of the Code; (ii) the applicants signed releases in favour of the respondent, releasing it from any and all claims, including claims related to the Code; and, (iii) the allegations do not establish a prima facie case of discrimination. On November 28, 2011, the respondent also filed a Response to the Application, reiterating its request that the Application be dismissed.
4On November 30, 2011, the applicants filed Responses to the respondent’s Request for Summary Hearing and the union’s Request to Intervene, disagreeing with the respondent’s Request and submitting that they feel they were not protected by the union. On December 14, 2011, the applicants filed a further Response to the Respondent’s Request for Summary Hearing, and “Additional information concerning discrimination”.
5On January 9, 2012, the respondent reiterated its request that the Application be dismissed, or that a Summary Hearing be held.
SUMMARY HEARING
6Rule 19A.1 of the Tribunal’s Rules of Procedure, states 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.
7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, 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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
8In a Case Assessment Direction (“CAD”) dated March 6, 2012, the Tribunal granted the respondent’s Request for a Summary Hearing. The Tribunal directed that a Summary Hearing be held, by teleconference, to address whether the 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.
9The Tribunal also directed the parties to be prepared to make submissions at the Summary Hearing on: whether the Application should be dismissed on the basis that the applicant(s) signed a release, and/or it would be an abuse of process for the Application to proceed; and, whether the Application should be dismissed in whole or in part on the basis of delay, within the meaning of section 34 of the Code.
The allegations
10With respect to the allegations of discrimination based on age, the Application alleges that the applicants were all 50 years old when they were “let go”, and the respondent said there would be “no bridging” of their pensions. The applicants allege that they were getting closer to their pensions, which they had earned and worked for, and the respondent did not want them “doing that” (i.e. bridging their pensions).
11The Application explains that the applicants were the respondent’s three full-time artists, and alleges that a “part-timer” is still employed. The applicants also allege that the part-timer went on training while the three full-time artists were overlooked. Mr. Lodge alleges that he was told on May 13, 2011 that the part-time position that he could have “bumped” down to, if it had not been “hidden” from him, was still filled, and that he should have had the option to bump down to part-time. Elsewhere in the Application, Mr. Lodge refers to having contemplated bumping into another position, a designer position, but not having an “unbiased chance”, so he chose not to.
12With respect to the allegations of discrimination based on association, the Application alleges that Mr. Agawin has a disability, and that the respondent was afraid of him because he might “blow up”. Mr. Lodge alleges that a supervisor told him that the respondent could not “deal” with Mr. Agawin, and that they always “talked down to him” like they were dealing with a child.
13Included with the Application is a four-page narrative, which appears to be drafted by Mr. Agawin, wherein he states that, after divulging his disability, he was treated even “shabbier”, and that the respondent “grilled” him about his disability.
14Lastly, the Application in Form 1-A indicates that the Application is not about discrimination on the basis of sex, but states that “it did exist”, and alleges that the applicants were treated differently than their female colleagues.
The respondent’s position
15In its Response to the Application, and Request for Summary Hearing, the respondent explains that it was agreed in the Collective Agreement between the respondent and the union that certain classifications of employees would be consolidated and eliminated. In particular, five classifications were to be deleted when incumbents left the positions, including the Artist classification. Any work remaining from the Artist classification was to migrate to the Journalist classification.
16The respondent explains further that the applicants were the only three individuals in the full-time Artist classification and, on December 9, 2009, the respondent advised the union that they would be laid off, along with a part-time artist and five other full-time employees in other classifications. The applicants were provided with lay-off notices on December 9, 2009, setting out three options: they could take non-voluntary severance pay; they were eligible to apply for a Voluntary Separation Package (“VSP”) which would include waiving all recall rights; or, they may be in a position to attempt to bump a more junior employee in the same or lower classification in the Editorial Department.
17The respondent explains that the applicants all applied for VSPs on December 23, 2009, and were approved. Mr. Herman’s, Mr. Agawin’s and Mr. Lodge’s release dates were May 15, May 22, and June 19, 2010, respectively. The respondent denies that it discriminated against the applicants based on any Code ground.
The union
18The union, in its Request to Intervene, submits that there is no merit to the Application. More particularly, the union submits that, approximately one year after voluntarily severing his employment, Mr. Lodge contacted the union about filing a grievance on the grounds that the consolidation of classifications in the Collective Agreement was discriminatory. The union submits that, other than a passing reference to the artists being “all 50 years-of-age” and that one of the artists has a disability, Mr. Lodge did not particularize his concerns about discrimination on these two grounds when he advanced his discrimination allegations to the union. The union submits that Mr. Lodge did not suggest discrimination on the basis of age or association with a person identified by a Code ground in his communications with the union. Rather, he alleged discrimination on the basis that he and the other applicants were artists and were targeted because the respondent wanted to “rid the artists from the Star”. The union submits that the other applicants, Mr. Agawin and Mr. Herman, did not contact the union regarding the classification consolidation.
Reasonable prospect of success
19At the Summary Hearing, Mr. Lodge submitted that he had a “gut feeling” that he and the other applicants were unjustly released at the time they were released. He submitted that they were surprised to see the part-time artist when they were all released, and they were told that she was going in August, which was fine with him; however, he believes that she is still there. He also reiterated his concerns about not being given options for bumping with respect to the part-time position, and wanting to bump to be a designer, but ultimately deciding not to because of who would be making the decision.
20In my view, the allegations of discrimination on the basis of age have no reasonable prospect of success. To begin with, there is no dispute that all of the three full-time artist positions were eliminated, that the union was advised that six other individuals would be laid off at the same time, and that such lay-offs were contemplated in the Collective Agreement. In the circumstances, I find that the mere fact that the applicants were 50 years old is insufficient to establish that age was a factor in their employment with the respondent coming to an end. In addition, I find that even if the applicants were told that there would be no bridging of their pensions, this does not support their allegation that getting closer to their pensions, or that age otherwise, was a factor in their employment ending. In my view, this latter allegation is quite speculative.
21Also, while it appears that the respondent ultimately maintained the employment of the individual who was in the part-time “artist” position, I do not find that this supports the allegation that age was a factor in the elimination of the applicants’ full-time positions. It appears from the applicants’ own allegations and materials that the part-time artist’s position was different from the full-time positions, not only in hours, but in other respects. I note that Mr. Lodge alleged in the Application that the “part-timer” did not have the ability to create graphics or illustrations like the artists, but just designed. He also alleged that the part-timer was friends with an art director, and that the respondent favoured designers. In a “transcript” of a December 15, 2009 conversation between Mr. Lodge and a union representative, it is also implied that the part-time artist is a designer, and recognized that the respondent wanted to keep designers, and that the applicant did not even know prior to this time that the part-time artist was actually in an “artist” position. The applicants confirm in their submissions dated December 14, 2011, that the part-time artist did not do the same work that they did and that they thought she was a designer until the “releases” came out. The applicants also did not provide any information with respect to the age of the person who occupied the part-time artist position.
22Elsewhere in the Application, Mr. Lodge alleges that the respondent is prejudiced against artists. He also alleges that the artists were all discriminated against based on their appearance as they all have long hair. At the Summary Hearing, Mr. Lodge submitted that he thought the main reason why the respondent did not want the artists to stay is because the respondent did not think they were “journalists”. In my view, the applicants’ position in this regard is consistent with the union’s position in its Request to Intervene, and its submissions at the Summary Hearing, that Mr. Lodge only raised concerns with the union about discrimination on the basis that the applicants were artists, as opposed to Code grounds. I also note that the four-page narrative included with the Application that appears to be a draft grievance written by Mr. Agawin makes no mention of discrimination on the basis of age.
23Lastly, while it appears the applicants may not have been able to bump into the part-time artist position, in light of the bumping process, I do not find this supports an allegation of discrimination on the basis of age. In addition, while Mr. Lodge submitted that the part-time artist position had been “hidden” from him, the position is clearly set out in materials that he stated he was provided with on December 9, 2009, regarding bumping, and discussed with a union representative on December 15, 2009.
24In my view, the applicants have not established that there is a reasonable prospect that evidence they have, or that is reasonably available to them, can show a link between the respondent’s actions and the ground of age.
25While Form 1-A of the Application indicated that the Application is not about discrimination on the basis of sex, differential treatment on the basis of sex was nevertheless alleged in the Application. In any event, I find that the applicants have also not established that there is a reasonable prospect that evidence they have, or that is reasonably available to them, can show a link between the respondent’s actions and the ground of sex. I note that Mr. Lodge baldly asserted at the Summary Hearing that all of his bosses were women and their bosses did not like the applicants. However, for an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that discrimination on the basis of a Code could be shown. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
26With respect to the allegations of discrimination on the basis of association, as I understand it, Mr. Lodge and Mr. Herman allege that they were subjected to discrimination on the basis of association with Mr. Agawin, who has a disability within the meaning of the Code. However, discrimination on the basis of association was not addressed at the Summary Hearing, and, in my view, Mr. Lodge and Mr. Herman have simply not established that there is a reasonable prospect that evidence they have, or that is reasonably available to them, can show a link between the respondent’s actions and the ground of association. I also find the allegations of discrimination on the basis of association to be speculative.
27While discrimination on the basis of disability was not specifically cited in Form 1 of the Application, in my view, it is clear from the overall Application that Mr. Agawin is alleging discrimination on the basis of disability. I note that Mr. Lodge alleges in the Application that a supervisor told him that the respondent could not “deal” with Mr. Agawin, and that they always “talked down to him” like they were dealing with a child. In his narrative, included with the Application, Mr. Agawin states that, after divulging his disability, he was treated even “shabbier”, and that the respondent “grilled” him about his disability. In the circumstances I do not find that the allegations of discrimination on the basis of disability concerning Mr. Agawin have no reasonable prospect of success.
28In summary, with the exception of the allegations of discrimination on the basis of disability concerning Mr. Agawin, I find that the remaining allegations in the Application have no reasonable prospect of success and are therefore dismissed.
Delay
29The Application states that the date of the last event was July 20, 2011. Mr. Lodge also alleges in the Application that, on May 13, 2011, he was informed by a past co-worker that the part-time position was still filled, and he came to the conclusion that his rights were violated.
30The respondent submitted in its Response and Request for Summary Hearing that the Application is out of time as it was filed beyond the one year time limit set out in the Code, and that no good faith explanation has been advanced to explain the delay in filing the Application as required by the Code.
31The respondent also submits that the applicants allege in the Application that it has taken time for them to find evidence that they were discriminated against. Referring to the Tribunal’s decision in Krajisnik v. Linamar, 2011 HRTO 143, at para. 37, the respondent submits that an applicants’ search for additional evidence to support a claim of discrimination does not constitute a good faith explanation for delay. The respondent submits that the Application is full of references to concerns that the applicants had about how the respondent treated them in the period prior to the end of their employment, and at the time of the termination of their employment, and believed that the respondent had discriminated against them at the time their employment was terminated. The respondent also submits that any evidence that was subsequently discovered by the applicants was not information that helped them to discover their alleged case, but rather was evidence that the applicants determined could help support their allegations.
32Section 34 of the Code provides 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.
33The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.
34In the present case, the Application was filed on August 11, 2011, and it appears undisputed that the employment of Mr. Herman, Mr. Agawin and Mr. Lodge with the respondent ended on May 15, May 22, and June 19, 2010, respectively. While the Application stated that the last event was July 20, 2011, there does not appear to be any allegation of discrimination corresponding to that date in the parties’ materials, nor did Mr. Lodge refer to an allegation of discrimination corresponding to that date at the Summary Hearing. As such, it appears that the Application was filed beyond the one year time-limit in section 34(1) of the Code.
Good faith
35In addressing good faith within the meaning of section 34(2) of the Code, the Tribunal states as follows in Miller v. prudential Lifestyles Real Estate, 2009, HRTO 1241, at paras. 24-25:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
36In the present case, Mr. Lodge appears to allege that he only discovered that his rights were violated when he was informed by a past co-worker on May 13, 2011, that the part-time position was still filled.
37In Klein v. Toronto Zionist Council, 2009 HRTO 241, at para. 23, the Tribunal stated that 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. However, the Tribunal also stated in Klein that the discoverability doctrine 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.
38In my view, the applicants in the present case have not established that they only came to believe in May 2009 that they were subjected to discrimination with respect to their employment, or the termination of their employment, with the respondent. To begin with, Mr. Lodge also states in the Application that, in January 2011, he attended the respondent’s premises and explained to a union representative that he was putting off making a phone call “to question what was going on in the department and who was still there.” He explains further that he had been putting this off for some time because he feared the truth would hurt, he “assumed the scenario”, and, to his dislike, he was correct. He explains that the part-time person was still there.
39Mr. Lodge also states in the Application that he “gathered evidence for a year” and took this information to his union to grieve. He indicates that “time” allowed him to find proof that he and the other applicants were discriminated against. He states that he always thought they were subjected to discrimination, but queried how to prove it and stated that he gathered evidence for a year. In the applicant’s submissions dated November 30, 2011, Mr. Lodge also refers to knowing from “day one” that they were being deceived by the respondent. Lastly, at the Summary Hearing, Mr. Lodge submitted that he had a “gut feeling” that he and the other applicants were unjustly released at the time they were released.
40I do not accept that the applicants only came to believe that they were subjected to discrimination in May 2009. Rather, it appears from the applicants’ allegations and submissions that their knowledge and awareness of the facts giving rise to the alleged breaches of the Code crystallized at least by the time Mr. Lodge was released from employment, nearly fourteen months before the Application was filed. In my view, the applicants’ awareness that the part-time artist continued to be employed, as alleged, was not information that assisted the applicants in discovering a potential case under the Code. Rather, it was evidence that in the applicants’ view supported their allegations.
41With respect to the allegations of discrimination on the basis of disability in the workplace involving Mr. Agawin, in particular, it is clear from the Application that Mr. Agawin and Mr. Lodge were aware of these allegations prior to the termination of their employment.
42In the circumstances, the applicants have failed to establish the good faith necessary within the meaning of section 34(2) of the Code, in order for the Tribunal to accept the Application.
43The Application is dismissed on the basis of delay.
Conclusion
44The allegations in the Application, with the exception of the allegations of discrimination on the basis of disability involving Mr. Agawin, are dismissed as having no reasonable prospect of success. The Application is also dismissed on the basis of delay. In the circumstances, it is not necessary to determine the respondent’s request that the Application be dismissed on the basis that the applicants signed releases in favour of the respondent.
ORDER
45The Application is dismissed.
Dated at Toronto, this 14th day of January, 2013.
”signed by”
Brian Eyolfson
Vice-chair