HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ann Sinha
Applicant
-and-
State Farm Mutual Insurance Company
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Sinha v. State Farm Mutual Insurance Company
APPEARANCES
Ann Sinha, Applicant
Self-represented
State Farm Mutual Insurance Company, Respondent
Sven Poysa, Counsel
1This is an Application filed on November 23, 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 race, colour, ethnic origin, sex and reprisal. This Interim Decision addresses Requests for an Order During Proceeding (“RFOP”) filed by the parties.
BACKGROUND
2The applicant was employed by the respondent from September 8, 2003 until November 23, 2010, when the respondent dismissed her following an investigation into alleged improprieties regarding a charity fundraising event. The applicant alleges the termination of her employment amounted to a reprisal for recommending the hiring of visible minorities. The applicant further alleges that she was subject to racist comments, homophobic jokes and to the display of sexual material at different times during her employment. The applicant also alleges that she was subjected to discrimination and harassment regarding pregnancy and her pregnancy and parental leave that she took between November 30, 2008 and December 1, 2009.
3The respondent denies the allegations and submits that it dismissed the applicant for non-discriminatory reasons related to her performance.
Respondent’s Request to Dismiss for Delay
4By letter dated March 19, 2012, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) to the applicant because it appeared that the incidents described in the Application occurred more than one year prior to the date the Application was filed. Consequently, the Tribunal advised that all or part of the Application may be outside of the Tribunal’s jurisdiction, pursuant to section 34(1) of the Code. The Tribunal directed the applicant to file submissions regarding whether the Application related to a series of incidents, the last of which occurred within one year of the filing date, or whether any delay was incurred in good faith.
5Section 34(1) and (2) state 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.
6The applicant provided submissions as directed and in Interim Decision 2012 HRTO 811, the Tribunal determined that it was not “plain and obvious” that the Application was filed more than a year after the last incident of discrimination or last incident in a series of incidents and declined, at that point, to dismiss all or part of the Application. The Tribunal noted, however, that this was not a final decision with respect to the issue of whether the Application or part of it is barred by section 34 of the Code. The Tribunal further advised that the parties may be required to address this issue if the respondent took the position that all or part of the Application should be dismissed for delay. The respondent did in fact take this position, both in its Response and in a RFOP that it filed on January 31, 2013.
7The respondent submitted that the Tribunal should dismiss all allegations of incidents set out in the Application alleged to have occurred prior to November 23, 2010 because they are beyond the one-year limitation period and do not form a series of events related to the applicant’s employment. The respondent further submitted that the applicant has not provided evidence that the delay in raising untimely allegations was in good faith.
8The respondent submitted that the termination of the applicant’s employment is the only incident that comes within the time limit set out in section 34(1)(a) of the Code. The respondent submitted that the applicant characterized the termination of her employment as a reprisal for recommending that the respondent hire candidates of diverse backgrounds. The respondent noted that the alleged incidents regarding the applicant’s hiring recommendations occurred in 2005 and 2008. The respondent submitted that the Application describes seven allegations of discrimination because of race. Two of the allegations are undated and the other five incidents allegedly occurred in 2004, 2005, 2006 (two incidents) and 2010. The respondent submitted that the Application describes three allegations related to sex (pregnancy), two of which occurred in 2008 and the third in December 2009. The respondent submitted that the Application describes one incident related to sexual orientation that occurred in the fall of 2006. Finally, the respondent submitted that the Application describes sixteen allegations that disclose no connection to a prohibited ground of discrimination that occurred in 2006, 2007, 2009 (six incidents), 2010 (four incidents) and three undated incidents. The respondent submitted that these incidents do not amount to violations of the Code, assuming the allegations to be true.
9The respondent submitted that incidents alleged to have occurred prior to November 23, 2010 relate to completely different facts and engage different grounds under the Code than the timely incident, the termination of the applicant’s employment, which the applicant characterizes as a reprisal. The respondent submitted that the Tribunal dismissed allegations in similar circumstances in Polihronakos v. Mississauga (City), 2010 HRTO 1433. Moreover, many of the incidents on which the applicant seeks to rely occurred more than a year, and in most cases several years, prior to November 23, 2010 and therefore are too far removed in time to form a series. The respondent submitted that the Tribunal generally will not consider incidents a year or more apart to form a series, pursuant to the Tribunal’s decision in Savage v. Toronto Transit Commission, 2010 HRTO 1360. Consequently the respondent submitted that the alleged incidents do not form a series for the purposes of section 34(1)(b).
10The respondent submitted that the Tribunal should not exercise its discretion under section 34(2) to deal with the untimely allegations in the Application because the applicant has provided no explanation that would establish the delay was incurred in good faith. In that regard, the respondent submitted that the applicant retained experienced employment law counsel regarding the termination of her employment and that her lawyer sent a demand letter to the respondent in early December, 2010. Accordingly, the respondent submitted that the applicant’s delay cannot be attributed to a lack of understanding of her legal rights. The respondent submitted that the applicant had an opportunity to raise allegations of Code violations through counsel, but chose not to do so.
The Applicant’s Response
11The applicant submitted that the Tribunal has already dealt with the timeliness issues the respondent raises and submitted that the Tribunal has accepted the Application as timely
12The applicant submitted that it was correct that the series of incidents occurred over a number of years. However, the applicant submitted that the events are “part and parcel” of the discrimination the respondent subjected her to throughout her employment. The applicant reiterated that her supervisor did not support her and did not properly address the many workplace issues she brought to his attention. The applicant submitted that the investigation into the charity event was a pretext and discriminatory. Accordingly, the applicant submitted that it was reasonable to conclude that the prior incidents were conceived to discriminate against her.
13The applicant submitted that the delay in filing her Application was incurred in good faith because she made attempts to address her human rights concerns through the respondent’s internal mechanism and in civil proceedings and only turned to the Tribunal when those efforts failed. The applicant submitted that her counsel was an employment lawyer, not a human rights lawyer, and his efforts were focussed on negotiating a settlement in the wrongful dismissal context.
14The applicant submitted that the Tribunal’s decisions in Polihronakos, above and Savage, above, on which the respondent relied, are distinguishable from this case and should not be followed.
ANALYSIS AND DECISION
Series of Incidents
15The applicant filed the Application exactly one year after the respondent terminated her employment, which occurred on November 23, 2010. Consequently, the only incident that comes with the one-year time limit set out in section 34(1)(a) is the termination of her employment. The Tribunal therefore may not deal with the incidents described in the Application unless it is satisfied that they form a series of incidents with the applicant’s dismissal or that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
16The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change, 2010 HRTO 1621. Similarly, incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos, above. The Tribunal has also held that incidents separated by a gap in time of a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board 2009 HRTO 1225 and Savage, above.
17I am not satisfied that the incidents alleged in the Application amount to a series of incidents for the purposes of section of section 34(1)(b) of the Code. Many of the allegations set out in the Applicant do not on their face have any connection to a prohibited ground of discrimination and it is difficult to see how they have any nexus with the reprisal allegations regarding the applicant’s dismissal. Of the allegations that do appear to be related to a Code ground, only two occurred within one year of the applicant’s dismissal: (1) receiving a reduced performance rating shortly after returning from pregnancy and parental leave in December 2009 and (2) an employee commenting to a co-worker, sometime in the fall of 2010, that the landscape of the office had changed because the applicant hired black employees (the applicant did not witness this exchange). The remaining Code related allegations occurred between 2004 and 2008, inclusive, i.e., more than year before the timely incident. While a gap between incidents of a year or more is not necessarily conclusive (See, R.M. v. Toronto Police Services Board, 2011 HRTO 410), the applicant provided no basis on which the Tribunal could ignore the significant temporal gaps in this case. Moreover, the applicant did not describe any nexus or connection between any of the untimely incidents and the termination of her employment, which she characterizes as a reprisal. Rather, she simply made the bald statement that the incidents were indeed “part and parcel” of a pattern of behaviour. In particular, the incidents arguably connected to a prohibited ground of discrimination are based on different Code grounds than the dismissal and entirely different facts. Consequently, I find that the incidents described in the Application do not amount to a series, pursuant to section 34(1)(b) of the Code.
Good Faith
18The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 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, 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, 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.
19The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548 at paragraphs 12 and 14. In this case, the applicant had every reason to make inquiries about her rights and did, although she apparently did not seek advice about the Tribunal’s practices and procedures. Consequently, the fact that the applicant pursued internal remedies with the respondent while employed and civil proceedings following her dismissal before turning to the Tribunal does not, in my view, amount to a good faith explanation for her delay.
20The Application shall proceed with respect to the allegations related to the termination of the applicant’s employment only. The allegations of incidents occurring before November 23, 2010 are dismissed for delay.
Applicant’s Request for Production
21On February 7, 2013, the applicant filed a RFOP requesting production of documents. The applicant submitted that the respondent did not comply with its obligation under Rule 16.1 of the Tribunal’s Rules of Procedure (the “Rules”) to produce all arguably relevant documents. The deadline for delivery of arguably relevant documents was December 14, 2012 and was set out in the Notice of Confirmation of Hearing, dated November 23, 2012. The applicant noted that she complied with the deadline. The applicant submitted that the Tribunal should direct the respondent to deliver all arguably relevant documents in its possession including the following:
A copy of the original employment letter/document(s);
Original copies of all documents, files, letters, emails, notes, memos reports, assessments, and papers (in electronic form or otherwise) contained in the applicant’s Human Resources file;
Original copies of all performance reviews of the applicant (mid-year and final Performance Reviews (IPP and PRT)) signed by management from 2003 to 2010;
Performance review policy and/or practice at the time the applicant was hired into the position of Office Supervisor;
Original copies of all documents, files, letters, emails, notes, memos reports, assessments, and papers (in electronic form or otherwise) related to, and derived from, the United Way investigation surrounding the applicant, which should include any notes recordings or correspondence made by John Withrow resulting from all telephone conferences with Tanya M. Smith;
A copy of the internal letter or document of promotion to the applicant to the Office Supervisor position;
Office Supervisor job description at the time the applicant was hired into that position;
Automation Supervisor job description at the time the applicant was hired into that position;
A copy of the original internal letter or document of maternity leave;
State Farm Dress Code Policy at Withrow & Associates when the applicant was employed as an Office Supervisor;
State Farm policy governing performance evaluation of employees as it relates to employees returning from maternity leave after an absence of one year; and,
Any other information, document or file that may be deemed relevant and in the possession of the respondent.
The Respondent’s Response
22The respondent filed a Response to the RFOP on February 21, 2012 and submitted that the applicant’s request for immediate disclosure of all arguably relevant documents was improper, premature and a waste of Tribunal and other resources. The respondent submitted that the RFOP was premature because the scope of the Application is in dispute. The respondent noted that it filed a RFOP to establish the scope of the hearing to address issues of timeliness and allegations not amounting to violations of the Code. The respondent submitted that until the Tribunal dealt with the respondent’s request, production of arguably relevant documents is premature. The respondent also submitted that the Rule 16.2 provides for the exchange of documents 45 days prior to the hearing, which is scheduled in June 2013, which would allow the applicant to adequately prepare for hearing. Consequently, the respondent submitted that there is “no reason to depart from the Tribunal’s practices and to order production under Rule 16.1 many months in advance of the hearing”.
Analysis and Decision
23Rules 16.1 and 16.2 state as follows:
16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.
16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of documents upon which the party intends to rely; and
b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.
24Nothing in the Rules allows a party to decide the circumstances under which it will comply with the Rule 16.1 or any other Rule. Consequently, the respondent was not entitled to delay delivery of arguably relevant documents until the Tribunal ruled on its Request regarding the scope of the Application. Contrary to the respondent’s submissions regarding wasted resources, the respondent’s failure to meet its obligations under Rule 16.1 caused the applicant to file an unnecessary RFOP that the Tribunal was required to address. Rule 16.1 requires the production of arguably relevant documents and Rule 16.2 requires production of the documents upon which the parties actually intend to rely. Accordingly, these rules serve different purposes. The purpose of Rule 16.1 is to ensure that the parties have all arguably relevant documents well in advance of a hearing in order that they can choose the documents upon which they will rely and it is no answer to state that a party will receive documents under Rule 16.2. The Tribunal certainly has no practice of allowing parties to ignore its Rules, as the respondent seems to suggest. At the very least, the respondent should have produced the arguably relevant documents in its possession related to the termination of the applicant’s employment, which the respondent submitted was within the proper scope of this Application in its RFOP (see paragraph 8, above).
25At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns. See, McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. The fact that a document may be considered arguably relevant does not mean that it will necessarily be found to be actually relevant and admissible in a hearing. The applicant did not indicate why the documents she listed in her RFOP are arguably relevant, but I am satisfied that the documents described in paragraphs 22(1),(3), (4), (5), (6), (7), (8) and (11), above, are arguably relevant to the issue of the termination of the applicant’s employment. The remaining requests are in my view either too broad or not related to the issue of the applicant’s dismissal.
ORDER
26The Tribunal orders as follows:
The Application shall proceed with respect to the allegations related to the termination of the applicant’s employment only. The allegations of incidents occurring before November 23, 2010 are dismissed for delay; and,
The respondent shall immediately comply with Rule 16.1 and shall immediately deliver the documents described in 21(1), (3), (4), (5), (6), (7), (8), and (11), above, and if the respondent has not done so within 7 days of the date of this Interim Decision, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal Rules.
Dated at Toronto, this 1st day of May, 2013.
“Signed by”
Douglas Sanderson
Vice-chair