Michele Van Bauwel v. Toronto Transit Commission, 2013 HRTO 801

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Van Bauwel Applicant

-and-

Toronto Transit Commission Respondent

DECISION

Adjudicator: Brian Cook

Date: May 13, 2013

Citation: 2013 HRTO 801

Indexed as: Bauwel v. Toronto Transit Commission

APPEARANCES

Michele Van Bauwel, Applicant Self-represented

Toronto Transit Commission, Respondent Angela Rae, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was initially filed on May 7, 2012 and a revised Application was filed in July 2012.

2Pursuant to a Case Assessment Direction dated December 7, 2012, a hearing was held on March 22, 2013 to determine various matters including:

1. whether any alleged incident of discrimination or reprisal occurred within one year of when the Application was filed;

2. If an alleged incident of discrimination or reprisal occurred within one year of when the Application was filed, was that incident part of a “series of events” within the meaning of section 34 of the Code?

3. If an alleged incident of discrimination or reprisal occurred within one year of when the Application was filed should that allegation be dismissed because there is no reasonable prospect that the applicant could show that the alleged discrimination or reprisal occurred.

3In addition, the Case Assessment Direction noted that that parties have raised other issues, including whether the people named as personal respondents should be removed as respondents, whether the respondents could access the applicant’s medical records and a request to amend the Application.

4The telephone conference call took place on March 22, 2013.

5At the telephone conference call hearing, the applicant confirmed that she agrees that the personal respondents should be removed as respondents on the understanding that the corporate respondent would assume any liability for the actions of the named individuals. Ms. Rae confirmed that the corporate respondent would assume such liability. On this basis, the personal respondents are removed as respondents to the Application and the style of cause has been amended accordingly.

6During the hearing, I raised the question of whether the applicant should be permitted to make a final written submission to ensure that I had the necessary information to determine the issues before me, and in particular, the issue of whether there was a Code-related incident of alleged discrimination in the one year period prior to the date the Application was filed with the Tribunal.

7On behalf of the respondent, Ms. Rae objected to this proposal, on the grounds that the applicant had ample opportunity to prepare her submissions regarding the issues in the hearing and because the respondents did not want to incur any additional legal costs.

8At the conclusion of the hearing, I advised the parties that the hearing was concluded and that I would either issue a written decision or further instructions, including instructions about whether further written submissions would be permitted.

9In the days following the hearing, the applicant forwarded additional written submissions. The respondent objected to this, noting that I had not ruled on whether further submissions were required. I issued a Case Assessment Direction dated March 28, 2013 which directed as follows:

I will accept the written submissions that the applicant has filed to date. The respondent is not required to respond to those submissions unless directed to do so.

I will not accept any further written submissions from the applicant and the applicant is directed to not file any further submissions unless she is directed to do so.

10The post-hearing submissions that the applicant sent provide further details about the allegations in the period prior to May 7, 2011. They reiterate the allegations about the events after May 7, 2011 but provide no further significant details about anything that occurred after May 7, 2011.

Timeliness of the Application

11Section 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.

12The applicant first filed an Application with the Tribunal on May 7, 2012. The Tribunal issued a Notice of Incomplete Application on May 23, 2012 requiring the applicant to provide missing information. The applicant submitted an “Amended Application” on July 31, 2012. It is substantially the same as the first Application although, as the respondent points out, not identical, particularly with respect to the grounds of alleged discrimination and the requested remedies.

13The Tribunal delivered the Amended Application to the corporate respondent and the people named as personal respondents on August 9, 2012.

14On behalf of the respondent, Ms. Rae submits that for the purpose of section 34, the Application should be deemed to have been filed on July 31, 2012, when the “Amended Application” was filed, and not May 7, 2012, when the original Application was filed. I have determined that for the purposes of the issues before me, I do not need to decide this issue and have assumed that the Application was filed on May 7, 2012, as the Registrar indicated in communication with the parties in respect of the Application. I have therefore considered the events that are alleged to have occurred prior to May 7, 2011, which was one year before the Application was filed and then considered the events that are alleged to have occurred in the one year period from May 7, 2011 to May 7, 2012.

15Since the original and amended Applications were filed, the applicant has filed a number of Requests for Order During Proceedings that provide additional detail about her allegations about events prior to May 2011 and how those events have affected her. The respondent has also filed a number of Requests for Order During Proceedings and that the applicant has provided more details in various responses to those Requests.

Events prior to May 7, 2011

16The applicant alleges that she was subject to a history of discrimination and reprisal at work. This started when she filed an internal human rights complaint in 2009. At the time, the applicant was working in the corporate respondent’s legal department. She believes that one of the lawyers interfered in the complaint process. She was off on a leave from October 2009 to June 2010. She alleges that when she returned, she was assigned to a different department where she was assigned lower level job functions.

17She commenced a second complaint process under the internal human rights policy and an external counsel was retained to investigate. He released his report in March 2011. The report did not support the applicant’s complaint. The applicant alleges that she was told that she would be subject to reprisal if she made any further complaints.

18The applicant indicated that it was suggested that she make a lateral transfer to a different department. She was to start in the new department on December 13, 2010. On that same day, she had a slip and fall that resulted in injuries. The applicant alleges that she asked for accommodation of physical disabilities she had as a result of the injuries and that she was not appropriately accommodated.

19The applicant alleges that a she was subjected to sexual harassment on January 6, 2011 when a supervisor made an inappropriate remark to her. She alleges that her complaint was rejected out of hand and no investigation was done because she was simply not believed. She alleges that she was threatened with reprisal including dismissal if she made any other complaint.

20The applicant alleges that she was subject to discrimination and reprisal, particularly in the period from December 2010 to May 2011. This included denial of advancement opportunities, unfair and arbitrary requirements related to her hours of work and unfair and unwarranted criticism of her work. In addition, she alleges that supervisors swore at her and made other inappropriate comments and treated her disrespectfully. She also alleges that none of her complaints were properly addressed or investigated.

21The applicant has been on a medical leave since May 2, 2011. She alleges that a manager told her on that day to “get off the property”. She alleges that she was suspended for three days at the same time. At the telephone hearing she stated that she believes that she has been unable to work since May 2, 2011. She has been in receipt of long term disability benefits.

Events after May 7, 2011

22At the telephone conference hearing the applicant was asked to clarify what she alleges occurred after May 7, 2011 that might constitute either an incident that was part of a series of events that started before May 7, 2011, or that might constitute a separate incident of discrimination or reprisal.

Communication with a co-worker

23The applicant indicated that after May 7, 2011 she contacted a co-worker who she understood had also experienced discrimination and asked the co-worker to come forward to support the applicant’s case. The applicant alleges that after she did this, her work email account was suspended and she could no longer make any email contact with people at work. She alleges that this was done in reprisal for her having contacted the co-worker.

24The respondent asserts that the applicant’s email account was suspended because she was sending a number of emails to a variety of people that the respondent felt were repetitive and vexatious and which were related to continuing efforts by the applicant to resurrect the March 2011 report by the independent lawyer or to have the investigation re-opened. The respondent asserts that these were disruptive and that in any event, the applicant did not need access to her work email as she was off work on a medical leave and was not expected to be conducting any work-related business. The applicant does not dispute that she was sending communications related to her complaints about the March 2011 report and the process leading to that report in the emails that she sent after May 7, 2011.

25Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

26The applicant’s communication with the co-worker was not related to the applicant’s own right to claim and enforce her Code-protected rights or to a refusal to infringe the rights of another person. It was rather an attempt to have the co-worker make her own claim or complaint. In addition, the respondent has provided a full non-discriminatory explanation for the suspension of the applicant’s email account.

27In my view, there is no reasonable prospect that the applicant can show that the communication with the co-worker or the suspension of her email account were discriminatory or involved reprisal contrary to section 8 of the Code.

Communications with the applicant’s manager in May 2011

28The applicant alluded to telephone communications with her manager that occurred in the weeks following May 2, 2011 when she left the workplace. She indicated that these were in part about the possibility of a return to work. She indicated that they also included information that she disclosed to the manager in voice mail messages about a work-related sexual assault that she had suffered in the 1980s. The applicant states that the discussions about a return to work ended when the manager determined that any discussion would have to wait until the Occupational Health and Safety department cleared her for a return to work.

29The respondent indicates that the manager asked the applicant to attend a meeting to discuss the allegations about a sexual assault in the 1980s, which she had raised after going off work, but that the applicant did not want to attend. The applicant did not dispute this.

30These allegations about conversations or voice mail messages with the manager do not appear to suggest an infringement of the applicant’s Code-protected rights. To the extent that the communications were about a return to work, in itself, it is not discriminatory for a manager to propose waiting to have such conversations until such time as the employee is able to return to work. I note that the applicant feels that she has been incapable of any work since May 2011. There is therefore no indication that the respondent refused to accommodate the applicant’s disability to allow her to return work because the applicant felt incapable of any work. To the extent that the communications were about allegations of a sexual assault some decades earlier, it appears that the applicant was given an opportunity to provide more information which she declined. In my view, there is no reasonable prospect that the applicant can establish that the communications with the manager in the period after she left work were discriminatory.

Discovery of a police report

31In the telephone conference call hearing the applicant mentioned that in about November 2011 she went to a police station while canvassing. While she was there, she found out that there was a police report about her that she understood related to a complaint made by the respondent alleging that she had damaged a table or files. The police officer told her that there could be charges pending against her and that the complaint had been filed with the police in 2010.

32The applicant alleges that this was a false complaint to the police that was done in reprisal by the respondent. Ms. Rae advised that the respondent was not aware of any complaint filed with the police although she indicated that the police had attended the workplace in relation to concerns about tampering with files. Ms. Rae also noted that this allegation about a false complaint to the police had not arisen at any time before the telephone conference call hearing.

33The applicant agreed that the police report is not relevant to any incident of alleged discrimination or reprisal that occurred after May 2011. What happened after May 2011 was only that she discovered the existence of the report. This is not evidence of an incident of discrimination in the year before the Application was filed on May 7, 2011.

34The significance of the police report in respect of the allegations of discrimination and reprisal in the period before May 7, 2011, is discussed below.

Contact with the applicant’s doctor

35The applicant alleges that her manager improperly wrote to her family doctor posing as a physician and that this occurred after May 2011. The basis for this allegation is not clear. Ms. Rae advised that the manager was involved in preparing a letter that was sent to the applicant’s family doctor. The letter asked for clarification of the applicant’s restrictions. There does not appear to me to be any reasonable prospect that the applicant could establish that the manager improperly wrote to her family doctor posing as a physician or that he otherwise obtained information in a discriminatory manner or in a way that could be seen as a reprisal.

Health and Safety file

36The applicant alleges that sometime after May 2011 she was told that she did not have a file with the Health and Safety department or that there was nothing in her file. Ms. Rae advised that the applicant does have an occupational health and safety file but that medical information cannot be accessed by the respondent without the applicant’s consent. She advised that there must be documentation in the file because the applicant has been off on a medical leave which would require documentation which would be filed in the occupational health and safety file.

37Even if the applicant was told that there was nothing in her file, it is not clear how this could be seen as an incident of discrimination or reprisal.

Phone call from a Disability Management Specialist

38The applicant alleges that after May 2011 she was called by a Disability Management Specialist in the respondent’s occupational health department who told her that the applicant would not be coming back to work. The applicant recalled that this person was in tears while telling the applicant this.

39The applicant did not explain how she could prove this allegation or show that, if it occurred, it was discriminatory or a reprisal. I also note that this allegation was not specified in the various written submissions the applicant has made.

Conclusions on whether the Application was filed in time

40As noted, the Code provides that a person must file an Application within one year of the incident to which the application relates or, if there was a series of incidents, within one year after the last incident in the series. Section 34 of the Code provides that an Application may be filed more than one year after the last incident to which the Application relates if there is a good faith explanation for the delay and no substantial prejudice will result to any person affected by the delay.

41The Application was filed on May 7, 2012. I have outlined the events that the applicant alleges occurred during the one year period from May 7, 2011 to May 7, 2012. For the reasons noted, there is no reasonable prospect that the applicant could successfully show that they involved an infringement of her Code-protected rights. Since these timely allegations have no reasonable prospect of success they cannot form part of a series of incidents with the earlier allegations discussed below.

42Consequently, there are no events that occurred within one year of the filing of the Application that infringed the applicant’s Code-protected rights. The Application was therefore not brought in time.

43Pursuant to section 34(2), the Application may nevertheless be brought if the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Is there a good faith explanation for the delay?

44As discussed, the one year period before the Application was filed began on May 7, 2011. The applicant alleges that she was told to leave the workplace on May 2, 2011 and that this was discriminatory or done in reprisal for her earlier complaints. This is an allegation, which, if true could lead to a finding that the applicant’s Code-protected rights were infringed. If the Application had been filed on or before May 2, 2012, the Tribunal would have jurisdiction to deal with. The delay in filing the Application, at least as it relates to the circumstances of the last day worked is therefore a matter of only a few days.

45However, the Tribunal has held that a delay of only a few days nevertheless means that the Application was not filed in accordance with section 34(1) and that the Application can only proceed if the applicant can show a good faith explanation for the delay. In Gagne v. Maximum Mining 2010 HRTO 689, the Tribunal Vice-chair commented (at paragraphs 9 and 10):

Although the delay is short, 6 days, the applicant must nevertheless establish that the delay – of whatever duration – was incurred in good faith. The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith.

In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner, even if the delay is a relatively short one (see Cartier v. Northeast Mental Health Centre, 2008 HRTO 1670).

46At the hearing, the applicant said that there are good faith explanations for the delay. She said that the primary explanation is that the discrimination and reprisal she experienced was “so huge” that it took a long time to complete the Application. In addition, she was raising two children and caring for her mother who was sick. As well, she said that her own health was not good and that this made it especially difficult to complete the Application. The applicant also emphasized that she is self-represented. She explained that while she did consult a lawyer, and incurred significant legal expenses, this was earlier on and the lawyer was not involved in filing the Application. The applicant did not identify any specific event that happened in or around May 2012 that meant that the Application could not be filed by May 2, 2012.

47The respondent pointed out that the applicant was employed as a legal clerk in the respondent’s legal department for most of her employment and that she therefore should be taken to have some knowledge of legal proceedings. The applicant said that she had no formal legal training that would have assisted her in completing the Application. While I accept that this is true, it does seem to me that the applicant’s work in the respondent’s legal department would have included a general awareness of the importance of limitation periods and filing deadlines.

48I also note that in the period before May 2, 2011, the applicant appears to have filed complaints in relation to the same allegations as those that underlie the Application, including complaints under the respondent’s internal human rights and workplace harassment policies.

49For these reasons, I cannot accept that the extent of the scope of the allegations or the fact that the allegations are “huge” as the applicant indicated, provides a good faith explanation for the delay in filing the Application.

50I have no reason to doubt that the applicant was caring for her mother and that raising her children required her attention. However, on the basis of the information provided by the applicant, I do not see that this provides a good faith explanation for the delay in filing the Application. The applicant has provided no medical evidence to show that her own disability prevented her from filing the Application on time. I therefore cannot accept that any of these factors provides a good faith explanation for the delay.

51As discussed, one of the applicant’s allegations is that the respondent reprised against her by filing a malicious complaint with the police sometime in 2010. She says that she only discovered this in November 2011. Assuming this to be true, the fact that the applicant only discovered in November 2011 that she had allegedly been reprised against in 2010 might provide a good faith explanation for the delay in bringing that aspect of the Application. However, this particular allegation was not in fact part of the original Application that was filed on May 7, 2012. It was not mentioned in the amended Application that was filed on July 31, 2012. Neither was it mentioned in either of the two subsequent requests to amend the Application filed by the applicant. It appears that this allegation arose in this proceeding for the first time only at the hearing on March 22, 2013.

52The allegation about the police report could therefore only be considered if the applicant were permitted to amend the Application to include it. The factors that the Tribunal usually applies when considering whether to permit the amendment of an Application include:

• Whether the amendment would occasion actual prejudice to the other party;

• Fairness;

• The conduct of the party seeking the amendment;

• The impact of the proposed amendment on the course of the hearing and any other parties.

(Wozeilek v. 7-Eleven Canada, 2009 HRTO 926)

53Applying these factors to the present case indicate that it would not, in my view, be appropriate to permit the Application to be amended to include the allegation about the police report. In addition, the applicant has already made two earlier requests to amend the Application, neither of which mentioned the allegation about the police report. The Tribunal’s processes are not designed to allow an Application to continually evolve. I am therefore satisfied that in this case it would not be appropriate to permit the Application to be amended so as to include the allegation about the police report.

54The additional proposed amendments to the Application all relate to events that occurred before May 7, 2011. Even if it were appropriate to amend the Application in respect of them based on the criteria noted above, there would be no purpose as they are not timely allegations.

DECISION

55I find that the Application was not filed in time in accordance with section 34(1) of the Code.

56I further find that the applicant has not established a good faith explanation for the delay in filing the Application.

57The Application is dismissed.