Madhi Tarabain v. The Regional Municipality of Halton, 2014 HRTO 1191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Madhi Tarabain Applicant

-and-

The Regional Municipality of Halton Respondent

DECISION

Adjudicator: Alison Renton Date: August 8, 2014 Citation: 2014 HRTO 1191 Indexed as: Tarabain v. Halton (Municipality)

APPEARANCES

Mahdi Tarabain, Applicant Self-represented

The Regional Municipality of Halton, Respondent Lauri Reesor, Counsel

1This Application alleges discrimination with respect to employment because of family status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). It was filed on March 7, 2013 and identifies November 19, 2012 as the date of the last event upon which the Application is based.

2The allegations of discrimination contained in the Application can be broken down into six different areas: a seminar course during the summer of 2011; a January 2012 performance letter; the denial of overtime in February 2012; heightened performance scrutiny; February 22, 2012 annual performance appraisal; and termination after returning from parental leave.

3The respondent filed a Response denying the allegations.

4A hearing was scheduled for March 17, 18 and 19, 2014.

5In Interim Decision, 2014 HRTO 55 ("the Interim Decision"), the Tribunal denied the applicant's request for production of his Outlook emails. Amongst other things, the Tribunal directed the applicant to file submissions about his allegations that pre-date March 7, 2012 as being possibly untimely and to advise on the status of a complaint he filed with the Ministry of Labour under the Employment Standards Act, 2000 ("ESA"), and if the Ontario Labour Relations Board ("OLRB") had issued a decision, to provide a copy of the decision. The respondent was given an opportunity to file submissions responding to the applicant's submissions.

6Following receipt of these submissions and information, including a December 18, 2013 decision of the OLRB ("the OLRB decision"), the Tribunal issued a Case Assessment Direction dated February 14, 2014 ("the February CAD") cancelling the dates of the merits hearing and scheduling a telephone conference call in its place to address the following:

1. Are the allegations in the Application that pre-date March 7, 2012 untimely within the meaning of section 34(1) of the Code and if so is there a good faith explanation for their delay within the meaning of section 34(2) of the Code?

2. Do the allegations in the Application that pre-date March 7, 2012 fall within a "series of incidents" within the meaning of section 34(1)(b) of the Code and as such are timely?

3. With the OLRB decision being issued, does section 45.1 of the Code operate to dismiss the Application in whole or in part?

4. If the allegations that pre-date March 7, 2012 are found to be untimely, and/or part of the Application is dismissed pursuant to section 45.1 of the Code in light of the OLRB decision, do the remaining allegations in the Application have a reasonable prospect of success? The applicant should be prepared, on this issue, to point to the evidence on which he will establish a link to the grounds alleged, intention to commit a reprisal, and a link to the respondent's alleged actions.

7After the issuance of the February CAD, the applicant sent in a series of emails requesting that the Tribunal withdraw the February CAD. In Interim Decision, 2014 HRTO 222, the Tribunal denied the applicant's request that it withdraw the February CAD.

8Subsequently, the applicant filed a Request for Reconsideration on March 12, 2014 ("the Request") requesting that the Tribunal reconsider the February CAD. The Tribunal, in correspondence dated March 13, 2014, acknowledged receipt of the Request, and advised the respondent that it was not required to respond to the Request unless directed to do so by the Tribunal.

9The telephone conference proceeded on March 17, 2014. Both parties filed comprehensive materials prior to the conference call and both parties participated in the conference call, which lasted three hours.

10During the hearing, for the first time, the applicant stated that he wanted to rely upon an additional allegation and Code ground, specifically the importance of having Canadian experience in relation to receiving a professional engineer's designation. The Tribunal denied the applicant's request to raise this new issue. In addition to this respondent likely not being the correct respondent to defend against this allegation, it was not an allegation raised in the Application and the respondent would be prejudiced in its ability to defend against the allegations at this stage.

the OLRB decision

11The applicant filed an ESA complaint with the Ministry of Labour in which he alleged that he was given a negative performance review as reprisal because he intended to take a parental leave under the ESA. An Employment Standards Officer ("ESO") refused to issue an order against the respondent. The applicant sought a review of the ESO's decision by filing an application under the ESA ("the ESA application"). The review was conducted by the OLRB as a hearing de novo, during which the parties testified. The OLRB issued a decision dismissing the ESA application and found that there was no reprisal under the ESA. See Tarabain v. Regional Municipality of Halton, 2013 CanLII 84176 (ON LRB).

12The OLRB noted at paragraph 4 of its decision that there were other issues between the parties, including the applicant's request to be reinstated, which were not before the OLRB.

13The OLRB found, at paragraph 32 of its decision, that the respondent had performance issues with the applicant which had been raised with the applicant and documented prior to the applicant announcing his intention to take parental leave. The OLRB accepted the evidence of the respondent's witness over the evidence of the applicant, and reviewed documentation that was tendered during its proceeding. The OLRB determined at paragraphs 34 and 35 of its decision that the respondent had satisfied the burden of showing that it did not contravene the reprisal provisions contained in section 74 of the ESA and dismissed the ESA application.

does [section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) operate to dismiss the Application in whole or in part because of the OLRB decision?

The applicant's submissions

14The applicant submits that the onus falls on the party seeking to rely upon section 45.1 of the Code to show that the other proceeding appropriately dealt with the substance of the Application, and in this case, the respondent must show that the ESA application and subsequent OLRB decision appropriately dealt with the substance of the Application. The applicant submits that the respondent cannot meet this onus and that the ORLB did not appropriately deal with the substance of his Application.

15First, the applicant submits, his Code issues have not been determined by an adjudicator. The OLRB ruled on ESA issues, not Code ones, and he has not had the opportunity for a full and fair hearing of his Code issues. He pointed out that the OLRB decision does not address a number of material facts, including the respondent changing the date of his performance appraisal so that he had less time to prepare for it and respond to it, as well as the respondent not giving him a mid-year evaluation prior to his performance appraisal. He submitted that the OLRB decision is silent about some issues, including assigning him to assignments with deadlines after he announced that he was taking parental leave, or moving up the deadlines to be completed before he commenced parental leave.

16Further, the applicant submits, the OLRB did not address all the issues that he has raised in his Application, which it acknowledged in paragraph 4 of the OLRB decision. Accordingly, he submits that his allegations pertaining to his termination should continue.

The respondent's submissions

17The respondent agrees that the OLRB decision did not address the applicant's termination given that the ESA complaint was filed prior to the applicant's termination.

18However, it submits that the OLRB decision appropriately dealt with the primary focus of the Application, namely the applicant's allegations that he suffered discrimination, in the form of negative performance management and a negative performance review, as a result of his decision to take parental leave. The facts upon which the applicant relies occurred prior to his notice of an intention to take a parental leave. The OLRB dismissed his complaint of reprisal for taking a parental leave based on the exact same facts and the issues determined by the OLRB, and facts upon which those issues were based, are almost identical to the central allegations in the Application. The issues before the OLRB, including reprisal under the ESA for taking or planning to take a parental leave, are, in essence, anti-discrimination provisions. The applicant was granted a full hearing by the OLRB and has had access to justice on this issue. The OLRB heard evidence from witnesses and found the respondent's witness to be more credible than the applicant. It is apparent that the applicant does not like the result that he received before the OLRB.

19The respondent submits that the Tribunal should exercise its decision to dismiss the allegations pertaining to the negative performance management and negative performance appraisal pursuant to section 45.1 of the Code.

Law and Analysis

20Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

21The legal principle surrounding the application of section 45.1 is well established in the Tribunal's jurisprudence. In Clarke v. Kingdom Hotel Toronto Ltd., 2013 HRTO 2002 at para. 19, the Tribunal explained it this way:

The section encompasses aspects of the common law doctrines of res judicata, issue estoppel, collateral attack and abuse of process amongst others was intended to prevent re-litigation of issues that have been adjudicated in another legal proceeding. The Tribunal's approach to the exercise of its discretion under the section was clarified and confirmed by the Supreme Court of Canada in Figliola v. British Columbia (Workers Compensation Board), 2011 SCC 52. See also Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297...

22The Tribunal has articulated a two part test in considering the application of the section. The Tribunal must consider: (a) whether there is another proceeding; and (b) whether that proceeding has "appropriately dealt with" the substance of the Application. See, for example, Tomlinson v. Arnold, 2009 HRTO 1782 at para. 6, and Campbell v. Toronto District School Board, 2008 RHTO 62 at para 64.

23Proceedings before the OLRB are proceedings for the purposes of section 45.1. See Clarke, above, at para. 21.

24I accept the applicant's submissions that the OLRB decision does not address all the allegations within his Application. At paragraph 4 of the OLRB decision, and after hearing submissions from the parties about a preliminary issue pertaining to the scope of the OLRB hearing, the OLRB noted:

Pursuant to s. 116 of the Act, a person is entitled to file an application for review of the ESO's order. Therefore, the Board is reviewing the Order or the decision not to issue an Order. Matters occurring after the complaint was filed are not part of the decision and therefore not part of the scope of this review. This case is about the review of the ESO's decision.

25Accordingly, the allegations pertaining to the applicant's termination in his Application are not dismissed pursuant to section 45.1 as it occurred following the filing of the ESA complaint. The allegations pre-dating March 7, 2012 are also not dismissed pursuant to section 45.1 and are dealt with separately below.

26However, the allegations about being subjected to negative performance management and receiving a negative performance review as reprisal for announcing an intention to take parental leave are dismissed pursuant to section 45.1.

27The legal issue of whether or not the applicant was subjected to reprisal for planning to take a parental leave by the respondent was fully adjudicated and determined by the OLRB. This is the same issue that the applicant is asking the Tribunal to determine. The OLRB held a hearing and heard evidence of witnesses, in which it found the respondent's witnesses to be more credible than the applicant. It issued the OLRB decision dismissing the ESA application with respect to the reprisal provisions contained in section 74 of the ESA.

28In doing so, the applicant was afforded an opportunity to have his concerns pertaining to his negative performance management and negative performance review determined by an adjudicator. The applicant does not assert that he was not afforded an opportunity to present his case before the OLRB.

29The OLRB considered, in essence, anti-discrimination provisions in the OLRB decision. See, Windrem v. JF Moore Lithographers Inc., 2012 HRTO 785 at para. 17. Further, the effect of the parental leave provided by the ESA is to prevent discrimination on the basis of family status, thus incorporating human rights considerations. See, Osmun v. ING Engineering Inc., 2014 HRTO 776 at para. 20. Furthermore, there are broad remedial powers existing under the ESA to address any violations. See, Windrem, above, at para. 17.

30Accordingly, the applicant cannot re-litigate the issues about his performance management, including his allegations of heightened performance scrutiny, and his performance appraisal and I exercise my discretion to dismiss those allegations pursuant to section 45.1.

do the allegations about the denied february 2012 overtime and the applicant's termination have a reasonable prospect of success?

The applicant's submissions

31The applicant submits that his allegations pertaining to being denied overtime in February 2012 and his termination in November 2012 have a reasonable prospect of success and they should not be dismissed.

32Instead of addressing the issues that he raised about his performance upon his return to work following his parental leave, the applicant submits, the respondent dismissed him. The applicant alleges that upon his return following parental leave, he was assigned a heavy work load and inquired about accommodation. The managers to whom he reported did not have children, he submits, and accordingly they did not require accommodation on the basis of family status.

33With respect to reprisal, the applicant asserts that he was reprised against for requesting to be accommodated during his wife's pregnancy and taking parental leave.

34With respect to the denial of the February 2012 overtime, he submits that the respondent made inconclusive or differential treatment towards him.

The respondent's submissions

35The respondent submits that the remaining allegations in the Application should be dismissed as disclosing no reasonable prospect of success and his allegations are merely bald assertions. The applicant cannot establish, the respondent submits, that family status played a factor or was the reason for his termination, or that he was reprised against within the meaning of the Code. He has failed to show a link between his termination and the Code grounds, but has based his allegations upon his "belief". It notes that the OLRB, in the OLRB decision, decided that there was no link between the performance issues and the parental leave. It flows that when the termination was based upon performance issues, the termination is also not discriminatory.

36Further, there is no link between the assessment of his performance and his taking of a parental leave and the applicant has not pointed to any evidence that the respondent's assessment of his performance was influenced by his parental leave. This position is bolstered by the OLRB decision which found no connection between the negative performance review and his taking of the parental leave, and its observation, at paragraph 31 that the applicant was required to establish "more than a temporal connection between announcing a parental leave and receiving a performance review before the Board will infer that the two are related". The applicant's performance issues continued following his parental leave, for which he was eventually terminated on a without cause basis.

37Any responses given by the respondent's Commissioner, the respondent submits, were given in the context of anonymous questions being posted on an employee intranet site called "Ask Mitch". This cannot presume to establish that the Commissioner was familiar with the applicant's situation as his name was anonymized on his questions.

38With respect to the allegation about the denial of overtime in February 2012, the respondent submits that this too has no reasonable prospect of success as there is no connection to a Code ground.

Law and Analysis

39Rule 19A of the Tribunal's Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

40The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 to 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.

41In 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, as opposed to direct evidence of discrimination. 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.

a) The alleged denial of overtime in February 2012

42The denial of overtime in February 2012 is a stand-alone allegation in which the applicant fails to point to any evidence or establish a link as to how this amounts to a violation of the Code on the grounds of family status.

43Without determining whether or not it is untimely pursuant to section 34(1) of the Code, this allegation is dismissed as having no reasonable prospect of success.

b) The applicant's termination in November 2012

44Section 8 of the Code contains a very specific meaning about "reprisal". It states:

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.

45Apart from a temporal connection from the time the applicant returned to work in October 2012 from his parental leave until the date of his termination in November 2012, there is no evidence which the applicant can point to, or rely upon to demonstrate a violation of the Code. The OLRB found that the applicant had performance issues before his parental leave. While the applicant may dispute that he had performance issues following his parental leave, his bald assertion that his termination was contrary to the Code is not sufficient to provide the necessary nexus between the impugned conduct and the Code grounds. See, Villella v. Brampton (City), 2011 HRTO 1085 at para. 8. The applicant cannot point to any evidence to show that the respondent intended to reprise against him for filing the ESA complaint or take parental leave.

46In his contact with the respondent's Commissioner, in the "Ask Mitch" format, the applicant is anonymized, and asks questions about the performance evaluation process. There are no allegations of discrimination or any Code claims raised by the applicant. The applicant, orally at the hearing, did not indicate that either of these two were raised in his contact with the Commissioner.

47I have also considered the list of the applicant's wife's medical appointment dates, which the applicant filed as part of his submissions, and which he asserted, for the first time during the hearing, that this supported his position that the respondent reprised against him for requesting to be accommodated during his wife's pregnancy. I note that nine of the eleven dates are from 2011 (with four dates being after the applicant's child was born in September 2011), and, as such, are outside the one year limitation period in section 34(1). The timeliness of these is addressed below. One date occurs when the applicant was on parental leave, and the last date is October 17, 2012.

48Leaving aside the issue of timeliness of the 2011 dates, the dates, by themselves, do not provide or demonstrate an inference that the applicant was reprised against for requesting to be accommodated during his wife's pregnancy and/or discriminated against on the basis of family status. Certainly, the 2011 medical appointments pre-date the applicant's announced intention to take a parental leave and accordingly cannot constitute reprisal within section 8 of the Code. By themselves, they do not satisfy the applicant's obligation to satisfy that he has a reasonable prospect of success of proving discrimination at a merits hearing. Similarly, the August 2012 date, which was when the applicant was on parental leave, cannot be the foundation for a claim of discrimination on the basis of either family status or reprisal since the applicant was not in the workplace and had complete control over his time. The October 17, 2012 date, by itself, without something more, is merely a bald assertion and does not have the necessary foundation to support an inference of either discrimination or reprisal.

49The applicant may believe that the respondent's action in terminating his employment him were contrary to the Code, but this is not sufficient to establish a claim. See, Flores v. Sunnybrook Health Sciences Centre et. al., 2012 HRTO 222 at para. 16.

50At the end of the day, I am left with an applicant who believes that his termination was Code related because he was terminated approximately one month following his return to work from a parental leave. However, this is not sufficient to establish that he has a reasonable prospect of success of these issues. This is similar to the situation in Patterson v. Mississauga (City), 2013 HRTO 394, although on different Code grounds, in which the Tribunal stated, at para. 57:

In the end, all that I am left with is the fact that the applicant is a 63-year-old black Canadian man, who is alleged to be the only black Canadian in his division and the oldest person in his division, who was subjected to performance management on the basis of an assessment by management of his work performance and workplace conduct which the applicant disputes. In my view, that is an insufficient basis to support an inference of discrimination and does not satisfy the applicant's obligation at a summary hearing to establish that he has a reasonable prospect of successfully proving discrimination if this matter proceeded to a full hearing.

51Accordingly, the applicant's allegations of discrimination and reprisal in relation to his termination and in relation to his request to be accommodated during his wife's pregnancy are dismissed as having no reasonable prospect of success.

Are the REMAINING allegations that pre-date March 7, 2012 timely?

52The applicant submits that the allegations in his Application that pre-date March 7, 2012, specifically the seminar course taken during the summer of 2011 and his January 2012 performance letter are timely because they constitute a "series of incidents" within the meaning of section 34(1)(b) of the Code. In support of this submission he states that there is no temporal gap, no gap of more than a year between allegations, the allegations all pertain to differential or disadvantaged treatment of him by the respondent compared with how other employees were treated, and the respondent marginalized him in terms of his performance. Furthermore, the allegations have a common theme as they involve the applicant and his manager.

53In the event that they are untimely, the applicant submits that there is a good faith explanation for the delay. He submits that it was not until his termination in November 2012 that he was able to review all the facts pertaining to his termination to conclude that his Code rights were violated by the respondent. He relies upon the "discoverability doctrine" when he received advice from a lawyer in November 2012, and referred to a number of decisions from the courts and the Tribunal in support of this principle. Furthermore, he submits that the Tribunal cannot expect him, a licenced professional engineer, to know about the Code when his professional duties are those of a professional engineer and not human rights. When he reviewed all facts pertaining to his employment with the respondent, he realized that there were issues that were contrary to the Code. He received advice from the Human Rights Legal Support Centre between December 2012 to February 2013, prior to filing his Application. He submits that there is no prejudice to the respondent for any delay and that section 34(1)(b) should not be narrowly interpreted.

54During the hearing, for the first time, he raised new allegations. This included the respondent's failure to accommodate him by not permitting him to attend his wife's medical appointments during her pregnancy and its failure to accommodate him to attend to his sister who was ill.

The respondent's submissions

55The respondent disputes that the allegations that arise prior to March 7, 2012 fall within the meaning of "series of incidents". The respondent submits that there is no factual link or common thread between the allegations, attending a seminar course in 2011 and performance issues, and they significantly pre-date the applicant's notice of intention to take a parental leave, as this was not communicated until January 31, 2012. Even if they raise the same Code ground as the timely allegations, there is no connection between the allegations to bring them within a series as contemplated by s.34(1)(b) of the Code.

56Furthermore, the respondent submits, the applicant bears the onus of proving that his allegations are sufficiently related to form a "series of incidents" and he has been unable to establish this in his submissions.

57Similarly, the applicant has not, the respondent submits, provided a good faith explanation for the delay in raising the allegations. The respondent notes that the applicant was willing to complain internally during his parental leave in the summer of 2012 and externally by filing a complaint with the Ministry of Labour before he was terminated, and seeking legal advice from a lawyer in November 2012 and from the Human Rights Legal Support Centre from December 2012 to February 2013. In addition, it would be prejudiced if it has to re-litigate performance issues. It objected to the new allegations being raised for the first time during the call, as well as denying the new allegations.

Law and Analysis

58Sections 34(1) and (2) state:

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.

59Section 34(1) is a one year limitation period established under the Code. The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation beyond the one year period, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2008 HRTO 1241.

60In this instance, the applicant did not raise the allegations that pre-date March 7, 2012, specifically the allegations about the seminar course in the summer of 2011 and the January 2012 performance letter, in a timely manner. The question to be determined is whether they fall within a "series of incidents" or there is a good faith explanation for their delay as required by sections 34(1) and (2) of the Code.

61The allegations that pre-date March 7, 2012 do not fall within a "series of incidents" within the meaning of section 34(2) of the Code. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, at para. 30, a panel of the Tribunal identified the following as factors to consider in determining whether or not allegations fell within 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?

62The applicant is correct that there is no temporal gap of a year or more between his allegations from the summer of 2011, to the January 2012 performance letter, to the denial of overtime in February 2012 and enhanced performance scrutiny, and his termination in November 2012, a factor the Tribunal has considered in cases. See, James v. Toronto Police Services Board, 2013 HRTO 250 at para. 9.

63However, notwithstanding that there is no temporal gap, I find that the allegations from the summer of 2011 (the seminar course) and the January 2012 performance letter are not of the same nature or character of the alleged discrimination, or part of a pattern or series of incidents or a similar nature or character. The summer 2011 allegation, in particular, is an isolated issue that has nothing to do with the applicant's performance. Furthermore, there is nothing raised in this allegation linking it to the applicant's family status.

64Similarly, the January 2012 performance letter has no connection with the applicant's family status. Based upon his own materials, the applicant did not advise the respondent that he planned to take a parental leave until after the January 2012 performance letter was issued to him.

65In addition, there is no good faith explanation for their delay. I note from the materials filed by both the applicant and the respondent, and submissions made, that the applicant had raised his concerns, both internally and externally, in a timely manner. Internally, he escalated his concerns to both a director, during his parental leave, and the respondent's Commissioner before he was terminated in November 2012. He filed an ESA complaint before he was terminated that resulted in the OLRB decision. He received legal advice from a lawyer in November 2012, which, according to the email the lawyer sent to the applicant dated November 1, 2012, which the applicant produced in his submissions, recommends he retain legal representation to ensure his matters are addressed within a timely manner and "any applicable timelines be appropriately assessed". He received legal advice from the Human Rights Legal Support Centre apparently between December 2012 and February 2013. This demonstrates that the applicant is capable of raising concerns and allegations in a timely manner and indeed, did so on numerous occasions for concerns arising in his workplace or in legal processes unrelated to the Tribunal. The Tribunal has held that efforts to pursue one's rights without filing an Application before the Tribunal have not been found to constitute good faith within the meaning of section 34(1) of the Code. See, Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 26 and Gagne v. Maximum Mining, 2010 HRTO 689 at para. 12.

66The Tribunal has also held that ignorance of the law is no excuse in matters relating to delay in asserting one's rights. See, Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 at para. 10 and Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8. Accordingly, the applicant's assertion that he did not know about his legal rights is not a good faith explanation under section 34(2). In any event, and as noted above, he received legal advice in November 2012 from one lawyer and then from the Human Rights Legal Support Centre from December 2012 to February 2013.

67With respect to the applicant's assertion that he did not realize that earlier events were a violation of the Code until he considered what happened to him overall, such that the pre-March 2012 allegations are not untimely based upon the "discoverability doctrine", I do not accept this explanation as a good faith explanation for the delay.

68As stated in Klein v. Toronto Zionist Council, 2009 HRTO 241 at paragraph 23:

What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. 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. It 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.

69In the applicant's case, there is no assertion or evidence that would establish that the respondent was trying to conceal information, fraudulently or otherwise. Instead, it is upon the applicant's own reflection of the facts of his employment, considered as a whole, which led him to the conclusion that his Code rights were violated. The fact that he relies upon untimely allegations as part of that analysis does not otherwise make them timely.

70With respect to the new allegations that the respondent failed to accommodate the applicant during his wife's medical appointments and failed to accommodate him during his sister's illness, I find that these too are untimely. They were raised, for the first time during the call and the applicant provided no explanation as to why these were now being raised almost a year after the Application was filed. In light of the efforts the applicant took to raise his concerns internally and externally, combined with the legal advice that he received, I find that there is no good faith explanation for the their delay.

71Accordingly, I find that the allegations from the summer of 2011, the January 2012 performance letter, allegations about not being accommodated during his wife's pregnancy and his sister's illness are untimely and these allegations are dismissed.

the applicant's request for reconsideration

The applicant's submissions

72The applicant continues to seek production of his emails that are contained on the respondent's servers. He claims that upon reviewing these emails, he may be able to obtain proof of discrimination or disadvantage. Complying with the production request would not take the respondent very long to do and is not very complex.

73As for the Request, he submits that he understood that the Tribunal's determination on that issue was final which is why he filed the Request. In response to the respondent's submissions, the applicant stated that the respondent was trying to prolong his recovery.

The respondent's submissions

74During the hearing, the Tribunal gave the respondent an opportunity to make submissions pertaining to the applicant's Request. The respondent submits that the applicant's Request should be denied as he does not make any submissions that fall within Rule 26.5 of the Tribunal's Rules of Procedure.

Law and Analysis

75In the Interim Decision, in denying the applicant's request for production of his Outlook email, and other items, I stated the following at paras. 14 and 15:

Although the parties are not required to file copies of their arguably relevant documentation with the Tribunal, the respondent filed a copy of an index of documents for one volume of documentation it provided to the applicant, as well as a photocopy of a second volume, that contains a heading "Performance Management" with three tabs. The first tab is called "Up to Jan 20, 2012"; the second "Up to Feb 22, 2012" and the third "Oct 9 – Nov 19, 2012". The respondent has submitted that it has disclosed several hundred pages of material to the applicant and has disclosed everything that, in its opinion, is arguably relevant to the issues before the Tribunal.

The applicant has not identified what specific emails are missing from the respondent's productions, or even a time period over which he seeks production. He has not provided an explanation as to why all of his Outlook emails for the duration of his entire employment are relevant to the issues in his Application. Accordingly, I find that his request for his Outlook emails is overly broad and his request for their production is declined.

76Rule 26.1 of the Tribunal's Rules of Procedure states that any party may request reconsideration of a final decision within 30 days from the date of the decision. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See, Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 41.

77The Interim Decision, by its mere title, is not a final decision. The question is whether or not the determination on the production order is a final decision or not. I find that it is not. I find that it does not deprive the applicant of "any prospect of a remedy" as against the respondent and does not dispute of the entirety of the application. Not being a final decision, it cannot, at this time, be the subject of a reconsideration request. See, Galuego v. Kensington Health Care, 2009 HRTO 179 at para. 2 and Rastel v. Dryden Police Services Board, 2011 HRTO 1769 at para. 7.

78Accordingly, the applicant's Request for Reconsideration is denied.

order

79Accordingly, the Application is dismissed for the following reasons:

a. The allegations pertaining to the applicant being subjected to negative performance management, heightened performance scrutiny, and receiving a negative performance review as reprisal for intending to take or taking a parental leave are dismissed pursuant to section 45.1 of the Code in light of the OLRB decision;

b. The allegations pertaining to the denied February 2012 overtime and the applicant's termination are dismissed as disclosing no reasonable prospect of success; and

c. The allegations that pre-date March 7, 2012, specifically the seminar course in the summer of 2011, the January 2012 performance letter, failure to accommodate the applicant during his wife's pregnancy and his sister's illness are dismissed as being untimely.

80The applicant's Request for Reconsideration is denied.