HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kathleen Carol Gillis
Applicant
-and-
City of Greater Sudbury, Michael Gringorten, Nick Benkovich, Karen Matthies and Kevin Fowke
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Gillis v. City of Greater Sudbury
WRITTEN SUBMISSIONS
Kathleen Carol Gillis, Applicant ) Self-represented
City of Greater Sudbury, Michael ) Mireille Khoraych, Counsel Gringorten, Nick Benkovich, ) Karen Matthies and ) Kevin Fowke, Respondents )
1This is an Application filed 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 sex.
2The Application alleges that September 2010 is the last major incident of discrimination but that a series of events continued. The allegations in September 2010 include that the applicant was subjected to discriminatory and harassing comments from her supervisor.
3The applicant alleges that she complained to the employer in December 2010. On January 28, 2011, the applicant filed a grievance with her bargaining agent the Canadian Union of Public Employees, Local 4705 with respect to the above-noted incident.
4In May 2011, an investigation was conducted by the employer and in June 2011, the applicant was advised that her complaint had been substantiated and the applicant was given a letter from the manager apologizing for his conduct.
5On August 5, 2011, the applicant filed a Form 1-A with the Tribunal. On August 8, 2011, the Registrar advised the applicant that she could not open a file unless she filed an Application. This correspondence attached a blank Form 1 reminded the applicant that she had to file this document within 1 year of the last incident of discrimination.
6The applicant who was on a leave of absence had a meeting on February 14, 2012 during which she was advised that she would be transferred to another plant upon her return to work. The applicant states that she told her employer that this was unacceptable and that she was being punished.
7The Application was filed on June 19, 2012.
8On October 15, 2012, the Tribunal issued Interim Decision 2012 HRTO 1956 which deferred the Application pending the conclusion of the grievance and arbitration proceeding.
9On August 7, 2013, the Tribunal issued Interim Decision 2013 HRTO 1359 which reactivated the Application after the Union withdrew the applicant’s grievance.
10On September 25, 2013, the respondent filed a full Response to the Application. It also filed a Request for an Order during Proceedings (“RFOP”) seeking the dismissal of the Application because it was not filed within one year of the last incident of discrimination.
11On October 28, 2013, the applicant filed a Reply in which she addresses the RFOP.
Delay
12The 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.
13The first issue that the Tribunal must determine is the date of the last incident of discrimination.
14The respondents’ position is that the last incident of alleged discrimination occurred in September 2010, approximately 21 months before the Application was filed.
15Having reviewed the materials I find that the Application is timely because there are allegations of discrimination which fall within 1 year of June 2012. The applicant has included in her narrative that her transfer to another location was discriminatory. These allegations appear to commence in February 2012 and continue into the spring of that year. The applicant also alleges an ongoing breach of the respondents’ obligation to maintain a workplace free of harassment and discrimination. The Application was filed within months of these allegations.
16However, the Tribunal notes that though the Application is timely, there may be an issue as to whether the incidents going back to September 2010 constitute a “series of incidents” for the pursuant to section 34(1)(b). This is an issue that has not been addressed by either party.
17However, I find that though there is an issue as to whether all of the allegations in the Application are timely, that it would not be an efficient use of the Tribunal’s resources to address this issue on a preliminary basis. The determination of the timeliness of these allegations should be left to the adjudicator assigned to determine the Application on its merits.
Next Steps
18Unless the parties advise, within seven days of the date of this Interim Decision that they agrees to attend Mediation, this matter will be scheduled for a two day hearing in Sudbury.
19I am not seized.
Dated at Toronto, this 24^th^ day of January, 2014.
“signed by”
Geneviève Debané
Vice-chair