HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nancy Christie
Applicant
-and-
Trent University
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Christie v. Trent University
APPEARANCES
Nancy Christie, Applicant
P.A. Neena Gupta, Counsel
Trent University, Respondent
Amanda J. Hunter, Counsel
1This is an Application filed on April 10, 2012 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 place of origin, ethnic origin and age.
2The respondent filed a response denying the allegations of discrimination in the Application and requested that a number of allegations be dismissed on the basis of delay.
3The applicant filed a detailed Reply and Response to the request which opposed the respondent’s request that the allegations be dismissed on the basis of delay.
4On August 7, 2012 the Tribunal sent a letter to the parties advising that a one day preliminary hearing would be held to determine the issue of delay.
5At the hearing on February 14, 2013 it became apparent to the Tribunal that the Trent University Faculty Association had an interest in the Application but had not had notice of the Application or the hearing. In a Case Assessment Direction dated February 15, 2013, I directed that the Association be given notice of the Application. On March 5, 2013, the Association confirmed that it would not be intervening.
Background
6The Application alleges that the applicant has been denied tenure track positions four times, in 2001, 2005 (the applicant did not apply but alleges that she was discouraged from applying because of discriminatory motives), 2006 and 2011. At the hearing the applicant advised that she was withdrawing the allegations of discrimination with respect to the 2001 position. Both parties agree that the allegations with respect to the 2011 job competition is timely.
7The applicant was successful in obtaining a limited term appointment (“LTA”) in June 2007, and then another LTA in June 2008. In June 2008, the applicant alleges that a petition was circulated by some staff for the purposes of harassing and discriminating against the applicant and caused her physical harm and mental distress. The applicant has had no employment relationship with the respondent since May 2009.
8On June 28, 2010, the applicant initiated an action against Trent University, the Association and twelve individual defendants, including a number of professors and union officials for harassment and unlawful interference with economic interests.
9The defendants brought a motion for summary dismissal on the basis that the applicant was precluded from initiating a claim against the defendants because the terms and conditions of her employment were governed by the Collective Agreement.
10On August 12, 2011 the Superior Court of Justice allowed the motion and issued a decision dismissing the applicant’s action on the basis that it did not have jurisdiction over the subject-matter of the claim.
11Both parties made detailed written submissions in their respective pleadings in support of their position. The applicant argues that the 2005 and 2006 denial of the tenured positions fall within a “series of incidents” as contemplated by the Code. Alternatively, the applicant argued that she can rely on the denial of the 2005 and 2006 tenured positions as a basis for me to infer that she was denied a tenured track position in 2011 for discriminatory reasons.
12The respondents submit that the pre-2011 allegations of discrimination are untimely and that the applicant cannot rely on these allegations in support of her Application.
13The applicant referred to a number of decisions including Zoludev v. EMC Corporation of Canada, 2011 HRTO 1411; Keith v. Yarl Co-operatives Home Inc. 2012 HRTO 941; and Henry v. Waterloo (Regional Municipality) 2011 HRTO 1927.
14The respondent relied on the decisions of Tsemo v. York University, 2012 HRTO 2197; Gynane v. Lakehead District School Board, 2012 HRTO 803 and Thambipillai v. Toronto District School Board, 2011 HRTO 487.
The Law
15The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:
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.
16In this case the issue is whether the allegations that the applicant was denied tenure track positions in 2005 and 2006 form part of a series of incidents with the timely allegations in 2011.
17Recently in the case of Garrie v. Janus the Tribunal canvassed in detail the law with respect to what constitutes a series of incidents and suggests that the Tribunal should consider the following factors at para. 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?
18I have considered the case-law provided by the parties. I have also considered the applicant’s argument that in the context of this Application there are limited tenured track positions that were vacant for which the applicant was qualified to apply. Whether allegations in an application form a timely series of events is based on a case by case analysis.
19I find that the allegations with respect to the 2011 job competition appear to be distinct from the other allegations, because the applicant also alleges that she was discriminated against based on the additional grounds of place of origin and ethnic origin, including that she is an Anglophone and the successful candidate is a Francophone from Quebec. The 2005/2006 allegations are based solely on age discrimination.
20The majority of the cases relied upon by the applicant in support of her position are with respect to parties who have continuing on-going relationships. In this case the applicant has not worked for the respondent since May 2009. There is a gap in the series of any allegations of discrimination with respect to the tenured positions from 2006 to May 2011, which I find is significant. Though I agree that the Tribunal should not strictly apply a “one year rule gap”, I find that the significant temporal gap between the 2005/2006 allegations and the 2011 allegations, in this case to have interrupted any pattern and/or series. As such, I find that the pre-2011 allegations do not form a “series of incidents” for the purposes of s. 34(1)(b).
Was the delay incurred in Good Faith?
21The Tribunal has the jurisdiction to accept an Application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay. Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.
22The applicant argued, in the alternative, that the applicant acted in good faith because she only determined that her rights under the Code where infringed after she retained legal counsel in 2010 with the benefit of hindsight. I do not accept this argument as constituting good faith since the applicant alleges in her Application that in 2005 she was told that she would not be considered for a position due to her age.
23Further, in Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal has relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:
Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.
24In this case, the applicant has not shown that she had no reason to make enquiries about her rights - enquiries which would have made her aware that she had to file her Application within one year of the last incident of alleged discrimination. Further, I find based on the applicant’s submissions that she waited years to seek legal advice and that she was not diligent in pursuing her rights at the Tribunal. In these circumstances, I find that the applicant has not satisfied me that the delay was incurred in good faith. It is not necessary, therefore, to address the issue of prejudice.
Reliance on the pre-2011 events
25The applicant asserts that she can rely on the pre-2011 “as evidence in support of the applicant’s complaint that there was a pattern of discriminatory conduct which culminated in the 2011 job competition” and for the Tribunal to draw appropriate inferences from the pre-2011 allegations.
26The respondent opposes this on the basis that this effect would completely circumvent the provisions of section 34 of the Code.
27I have ruled in this Interim Decision that there is no series and/or pattern of discriminatory incidents pursuant to section 34 of the Code. As such, the Tribunal will not determine whether the pre-2011 job competitions were discriminatory as these allegations are untimely.
28That said, there may be evidence that occurred prior to 2011 that is relevant to whether the 2011 job competition was discriminatory and that has sufficient probative value to be heard on the issues that are properly before the Tribunal. The Tribunal will address the specific scope of relevance and admissibility of that evidence at a later time when it arises. The focus of the hearing, however, will be on what is central to determining the timely issues.
29The Application shall be referred to Mediation since both parties indicated at the preliminary hearing that they were willing to attend Mediation.
Dated at Toronto, this 31st day of May, 2013.
”signed by”
Geneviève Debané
Vice-chair