HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Lou Jones
Applicant
-and-
Family Service Thames Valley
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Jones v. Family Service Thames Valley
APPEARANCES
Mary Lou Jones, Applicant
Michael Klug, Counsel
Family Service Thames Valley, Respondent
David Nash, Counsel
introduction
1The applicant filed an Application at the Tribunal on August 10, 2011. It alleges violations of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with respect to employment because of 1) reprisal; 2) poisoned environment; 3) harassment and discrimination because of sex; 4) discrimination because of disability; and 5) failure to investigate allegations of Code violations.
2After mediation failed, the Registrar of the Tribunal delivered to the parties a Notice of Intent to Dismiss (“NOID”) as it appeared that the Application is outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of the discrimination described in the Application. While the applicant alleges that bias is implied by the fact that the Registrar stated in the NOID that it appeared to the Tribunal that the Application was out of time, the NOID and the fact that the Registrar sent it had no bearing on my assessment of whether the Application or allegations in it should be dismissed for delay, nor on any aspect of my decision.
3The Tribunal scheduled a preliminary hearing by conference call to deal with the issue of delay, and the parties filed written submissions in advance of the conference call. At the preliminary hearing, the parties made oral argument. Argument, not evidence, was presented at the preliminary hearing; therefore, my analysis below is based on facts the applicant alleges. I make no findings with respect to whether the alleged facts are true.
4The applicant argues in her counsel’s written submissions that the Tribunal should find that any delay was incurred in good faith because the applicant retained her original counsel, “at the latest”, by August 9, 2010, and her present counsel, retained in November 2010, on several occasions provided an opinion “that the August 16, 2010 letter (bearing a date of August 10, 2010) would constitute an ‘incident’ such that an Application filed by August 10, 2011 would be timely given section 34(1)(b).”
5I agree that an applicant’s delay, if caused by his or her reliance on the wrong advice of counsel, may, in some cases, be found to have been in good faith, as long as there is no substantial prejudice to the respondent. However, in this case, if the applicant’s delay is to be excused as being incurred in good faith, then she can only be excused for alleged violations of the Code that would have been timely had they been filed when she retained counsel (August 9, 2010), or when counsel gave her the advice that she had further time in which to file this Application. In other words, in the best circumstances for the applicant, only those allegations that occurred on or after August 10, 2009 would be saved. Accordingly, I find that some of the allegations must be dismissed – there is no good faith explanation found for allegations that relate to events that occurred before August 10, 2009.
6I informed the parties at the preliminary hearing that I was reserving my decision about whether the allegations were or were not within time, and that if I were to find them out of time, the Tribunal would issue a direction with respect to how to proceed on determining whether any delay was caused in good faith, noting that evidence would perhaps be needed.
7I find that some of the allegations in the Application are out of time. I dismiss some of them, and direct that a preliminary hearing be scheduled for others in order to determine whether the delay in filing the Application was in good faith, and whether the respondent would experience no substantial prejudice from the delay.
8I also note that some of the allegations in the Application appear to have no evidence to support them, or appear not to be linked to reprisal, or to harassment or discrimination because of sex or disability, (including poisoned environment and failure to investigate) despite how they are characterized by the applicant. I therefore direct that the preliminary hearing include submissions from the parties with respect to those allegations to address whether there is no reasonable prospect of success. Some of these allegations are within time, and some are not.
9My directions for a preliminary hearing at the conclusion of this Interim Decision are in reference to the paragraphs which are underlined below.
facts as alleged in the application
10The Application was filed on August 10, 2011. The following is a summary of the facts as alleged in the Application that cover the time period until the applicant left work on August 9, 2010:
Alleged facts until the applicant stopped working on August 9, 2010
The respondent is a non-profit agency which provides support to members of the public, including counselling for victims of sexual assault.
The applicant started to work for the respondent in 2002. She is a counsellor.
In December 2005, at a holiday staff party, the applicant observed the respondent’s then Executive Director (“ED”) sexually assault the respondent’s accountant by handling her buttocks when the accountant appeared to the applicant to be inebriated.
The day after the party, the applicant told her supervisor what she saw the ED do, and the supervisor took extensive notes, stating that she would deal with it. The next day, the supervisor asked if she could disclose to the ED that it was the applicant who had identified him and the applicant “reluctantly” consented to the supervisor telling the ED that the applicant saw him assault the accountant. In the next day or so, the supervisor told the applicant that she would deal with the complaint and advised the applicant to “step back”, implying that the supervisor would handle it without the involvement of the applicant. The applicant agreed.
In the summer of 2006, the Chair of the respondent’s Board of Directors interviewed the applicant about the ED’s conduct at the holiday party. The Chair told the applicant that the ED knew that the applicant had reported what she had seen, and that the accountant’s boyfriend had also made a report. The applicant felt that the Chair was interviewing her as a result of the boyfriend’s complaint, and was trying to discredit his report in the interview.
By 2008, the accountant had resigned and the applicant had not been told of any conclusions of any investigation. She felt that there had been no repercussions for the ED and his behaviour in 2005. She observed her supervisor generally supporting the ED, and she felt that her supervisor had no negative opinion about the ED’s behaviour.
In November 2008, the applicant asked her supervisor for a pay increase because she discovered that another recently hired counsellor, performing essentially the same work, had a higher salary. The applicant was required to communicate with the ED about her request. A decision was made in January 2009, allowing only some of the pay increase. The ED’s email communications about the increase appeared “curt” and “dismissive” to the applicant.
On February 11, 2009, the ED wrote to the applicant, noting that her behaviour showed that she was upset with him, and asking for a meeting.
On February 18, 2009, the applicant met with the supervisor and ED to discuss the applicant’s concerns about her pay, and the ED said, “We will see what we can do,” placing his hand on her shoulder which the applicant says was without her consent.
The applicant asked her supervisor if the ED was influenced by the applicant’s report of his sexual misconduct in 2005. The supervisor said that was not the case because he is “a nice guy”, and it appeared to the applicant that the supervisor was very supportive of the ED.
Also, sometime near the beginning of 2009, the supervisor confirmed to the applicant that she had reported the applicant’s observation of the 2005 misconduct as sexual assault to the Board of Directors. The supervisor told the applicant that she did not know what the Board had done with the sexual assault report other than ban alcohol at the holiday party. The supervisor did not provide information about any investigation or investigation report.
By April 2009, the applicant was experiencing panic attacks and anxiety that she felt were connected to a poisoned work environment caused by the combination of 1) her complaining about the ED’s sexual assault; 2) the apparent support by the Board and the supervisor of the ED’s continued employment; and 3) the silence of the respondent with respect to any findings of any investigation.
For eight weeks in April and May 2009, the applicant took a stress leave, using overtime and sick leave credits. The applicant told her supervisor that the stress and anxiety was caused by feeling that the ED “got away with” sexual misconduct, but her supervisor suggested it was likely due to the applicant’s stressful work counseling sexual abuse survivors in Woodstock.
The ED left his employment while the applicant was on stress leave.
On September 22, 2009, the applicant requested that the respondent reimburse her the overtime and sick leave credits she used in April and May, arguing that the poisoned work environment caused her to take the sick leave.
The applicant’s supervisor, who appears to have become the new ED, (“current ED”) refused the applicant’s request for reimbursement of sick leave credits.
On November 9, 2009, the applicant filed an internal grievance with the Board of Directors for reimbursement of sick leave credits, stating that the stress leave was caused by the long term effects of the respondent not properly addressing her report of the previous ED’s sexual misconduct in 2005.
In a letter dated December 21, 2009, the Board of Directors advised the applicant in writing that 1) a “thorough” investigation of the alleged sexual misconduct had been conducted by the Executive Committee; 2) the current ED agreed to meet with the applicant to acknowledge that there could have been an unsafe environment for the applicant, and 3) the applicant would not be reimbursed.
On January 4, 2010, the current ED offered to retain a human resources professional to mediate with the applicant and the respondent to “help re-build trust” and “create safety” for the applicant. The applicant agreed to try mediation.
On January 29, 2010, the applicant’s new supervisor (“current supervisor”) berated the applicant, allegedly without good reason, which the applicant alleges was reprisal for her complaints about the sexual misconduct and the inadequate follow-up by the respondent. The applicant was required to meet on February 10, 2010, to discuss “expectations of supervision” and alleged “shortcomings [of the applicant] as a counsellor”.
On February 23, 2010, mediation began, and it appears that the applicant’s supervision was an issue, as well as a review of the response to the applicant’s report of the 2005 sexual misconduct.
By April 6, 2010, mediation had clearly failed, and the mediator ended it.
On May 1, 2010, the Vice-chair of the Board of Directors wrote to the applicant indicating there would be no more mediation, that it was time to move forward, and that the applicant should not talk to anyone about matters unless they were involved in the grievance process even though the applicant had not agreed to sign a confidentiality agreement.
On May 5, 2010, the Board of Directors summonsed the applicant to a meeting, saying that she must stop being disruptive, and asking her what she wanted.
On July 5, 2010, by which time the applicant was suffering from PTSD, depression, panic attacks and anxiety allegedly because of the respondent’s alleged failure to properly address what the former ED did, the applicant asked in writing to be withdrawn from providing trauma counselling one day a week in Woodstock due to what she referred to in her Application as an “unresolved workplace incident”. Her current supervisor complained that the applicant was changing her mind about what she wanted, and directed that the applicant meet with her and the current ED on July 16, 2010. At that meeting, her current supervisor told the applicant that she was confrontational and uncooperative, and suggested that her supervision of the applicant was ending.
On July 28, 2010, the applicant wrote to the Board of Directors for remedies to rectify what she identified as a poisoned workplace, including reimbursement of the sick leave credits as well as steps to rectify the poisoned environment. The applicant believed that she was responding to the Board’s invitation on May 5, 2010 to tell it “what she wanted”, but she never received a response. (The applicant later referred to her July 28, 2010 letter in her oral submissions at the teleconference hearing because it had been filed with the Tribunal. The applicant did not include in the letter any mention of a disability or needs arising from a disability that needed to be accommodated, but she requested “a 3 month fully paid and benefitted leave with no use of sick time in order to recover from the many aggravating circumstances, events and stresses that I have been subjected to up until this time, including the grievance and Mediation processes and inappropriate and harmful supervision, and to allow a period of separation between what has happened up until this time and new efforts to move forward”).
On August 4, 2010, the applicant wrote to the Board to say that the workplace atmosphere was toxic, apparently in reference to her recent supervision and her outstanding request for remedies.
On August 6, 2010, the applicant’s current supervisor asked the applicant how she was, and when the applicant answered that she was fine, the current supervisor repeated, “Fine,” in a mocking way. That afternoon, the applicant left work sick, and has not returned to the workplace since.
Alleged facts after the applicant stopped working on August 9, 2010
On August 10, 2010, the respondent wrote a letter to the applicant clarifying that the grievance was over. The letter was received by the applicant on August 16, 2010.
The applicant retained counsel and continued to receive her salary on a without prejudice basis until on or about November 1, 2010, and, after a delay, was approved for Long Term Disability benefits.
Counsel for the applicant and counsel for the respondent exchanged letters for several months with respect to their positions on what happened, and on remedy. The applicant argues that some of the respondent’s counsel’s communications are not privileged, and constitute a continuation of a poisoned environment. The respondent’s counsel wrote several letters, at least one of which the applicant argues constitutes further violations of the Code.
The respondent’s counsel’s allegedly discriminatory letter is dated October 6, 2010. It states the respondent’s disagreement with respect to the applicant’s claim. The applicant argues that this letter is dismissive of the applicant’s “special concerns and insulting to her personally”, but it is entitled “without prejudice” and appears to be a counter-offer to a settlement offer made by the applicant’s counsel.
The respondent did not respond to a request from the applicant’s counsel dated December 2, 2010 to provide results of the investigation of the ED’s 2005 conduct, nor did it later confirm that it agreed with the applicant’s counsel’s position in his letter of June 20, 2011 that the applicant’s workplace was poisoned.
The letter from the applicant’s counsel dated June 20, 2011 also appears to request that the respondent remediate the workplace by ensuring that it is no longer poisoned in order to accommodate the applicant’s “particular circumstances.”
The applicant filed her Application August 10, 2011.
analysis
11The Application states in its conclusion that the facts described above, “separately and together” comprise:
a. Discrimination on the basis of [the applicant’s] gender and/or disability,
b. Unlawful reprisal and retaliation for the December 2005 report,
c. A violation of the [respondent’s] obligation to maintain a harassment-free workplace for the applicant and others, and
d. The creation of a poisoned work environment on account of the [respondent’s] failure to properly address [the applicant’s] complaint about [the ED].
12Section 34(1) of the Code requires that an Application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:
(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 Tribunal’s Rules of Procedure provide that “where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.” The Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, includes subsections 89(1)-(5) pertaining to the calculation of time. Those subsections state:
89(1) Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday.
(2) Time limits for registering or filing documents or for doing anything else that expire on a day when the place for doing so is not open during its regular hours of business are extended to include the next day the place is open during its regular hours of business
(3) A reference to number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days.
(4) A period of time described as beginning or ending on, at or with a specified day includes that day.
(5) A period of time described as beginning before or after a specified day excludes that day.
14In order that the allegations in the Application filed August 10, 2011 be deemed timely, they must either relate to incidents that occurred on or after August 10, 2010, or, if they relate to prior incidents, those incidents must be part of a series of events that continued, at least, until a time on or past August 10, 2010, or they must be part of a continuing poisoned environment, continuing reprisal or continuing failure to investigate that continued at least until a time on or past August 10, 2010.
15The applicant’s written submissions state that the issue of timeliness of the Application came before the Tribunal solely in the context of deciding whether the entire Application should be dismissed, not whether some parts of the Application should be dismissed. The applicant points to the wording of the NOID which identified that apparent delay in filing the Application required submissions which the Tribunal would consider before deciding whether it might “dismiss your Application”. The NOID did not say, “dismiss parts of your Application”. I do not agree, however, that the NOID mandates that I not dismiss any of the allegations unless I dismiss them all. While the applicant made general statements in her written and oral submissions that the events over the years are interconnected and must be viewed as a whole, I disagree with some of the applicant’s characterizations of older events being part of ongoing and arguably timely Code violations, and I find that some alleged events are not connected to possibly timely events. I am satisfied that the NOID provided sufficient notice to the applicant that the Tribunal would examine everything in the Application to decide whether delay created a jurisdictional barrier for some or all of the allegations. I am also satisfied that the parties had an opportunity to make submissions on delay with respect to all the allegations in the Application. I see no merit to any argument of procedural unfairness with respect to the NOID and the subsequent process leading to the preliminary hearing or this Interim Decision’s dismissal of some of the allegations.
Sexual misconduct of 2005
16With respect to any allegation that the alleged 2005 sexual assault of the accountant by the ED constitutes discrimination or sexual harassment of the applicant, such an allegation is out of time. Without commenting on whether I agree that the alleged sexual assault on the accountant might be characterized as sexual harassment, gender discrimination or the creation of a poisoned environment for the applicant, I am not persuaded by the applicant that any breach of the Code sparked by this 2005 incident continued throughout the years after the applicant was interviewed in the summer of 2006 about it. The Application describes nothing in the latter half of 2006, in 2007, or in 2008 that might be relevant to allegations about the incident or the investigation.
17Given the respondent’s interview of the applicant (whether the interview was pursuant to the applicant’s report of the 2005 incident, or the accountant’s boyfriend’s report of it), and given the ensuing silence of the applicant and the respondent about the investigation and its conclusions, I find that any allegations related to the 2005 incident with respect to poisoned environment and failure to investigate were out of time by the end of 2007. More than two years of silence do not allow the applicant to argue that the respondent continued to breach the Code. Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of more than one year between incidents. (See, for example, Sutherland v. District School Board Ontario North East, 2010 HRTO 2270, and Watt v. Brockville Police Service, 2013 HRTO 1392). It was reasonable for the applicant to have understood a year after her 2006 interview, at the latest, that she was not going to receive the results of the investigation. Any allegations of a failure to investigate or to protect from poisoned environment should have been filed within a year of the anniversary of her 2006 interview.
18There is nothing in the applicant’s argument that any delay with respect to the 2005 incident and her reporting of it was incurred in good faith. In particular, a good faith argument with respect to these allegations cannot be supported by reliance on any advice that her counsel may have provided about the timing of filing an Application, given that she did not retain counsel until August 2010.
19The applicant determined during or soon after her sick leave in April and May of 2009 that never having been told of the outcome of the investigation caused her to become ill and require that she take the sick leave. She therefore raised the ED’s alleged 2005 misconduct and the respondent’s alleged mismanagement of its investigation in her 2009 internal grievance (which sought the reimbursement of sick leave credits), and in the mediation process after her grievance was denied. This attempt by the applicant in 2009 to resurrect her complaint about the 2005 incident and to allege mismanagement of an investigation does not resuscitate the allegations against the respondent of discrimination or harassment, of a failure to investigate, and of a failure to protect from a poisoned environment flowing from the 2005 incident. Similarly, letters from the applicant’s counsel after she left work in 2010 do not resuscitate those allegations. While it is unfortunate that the applicant continued to feel the effects of witnessing the alleged 2005 misconduct, and the effects of never receiving the results of an investigation of the misconduct, those potential violations of the Code were already out of time.
20The allegations that the alleged 2005 sexual assault of the accountant by the ED constitutes discrimination or sexual harassment of the applicant are dismissed. The allegations related to the 2005 incident with respect to poisoned environment and failure to investigate are also dismissed.
The respondent’s handling of the 2009 grievance and 2010 mediation
21The applicant also argues that the respondent’s treatment of the 2009 internal grievance and the 2010 mediation procedure themselves created a poisoned environment, or were reprisal for her having reported alleged breaches of the Code in 2005.
22The internal grievance begins with the following opening paragraph:
I have decided to appeal to yourself and the Board of Directors for reimbursement of the 248 hours of sick time used during the 8 week leave I took between April 7 and May 29, 2009 as a result of PTSD suffered due to the long term effects of a toxic work environment following my reporting the sexual misconduct of the then Executive Director of [the respondent].
23The letter goes on to describe the applicant’s reporting of the 2005 incident, the assurance by management that the board would deal with it, and the lack of a report back from the respondent on any investigation which the applicant described as the cause of the toxic environment causing her stress over the years to the point that she was suffering PTSD. Her grievance letter ends as follows:
I would like to be clear that I have a great deal of respect and admiration for [the current ED] and I do not and have not ever felt or believed that [the current ED] intentionally harmed me or that she would ever do so, including pursuant to this grievance.
I appreciate the steps that [the current ED] has taken through meetings with me to rectify this situation. The impact of the incident has become clear to me through counselling and as time has gone by and [sic] this has been a tremendous learning to me. It shows me that the agency can grow through this experience and hopefully we can create a clear protocol regarding the reporting of sexual misconduct at [the respondent’s workplace] and also create a procedure for making this a safe environment for the “whistle blower” to do so.
Thank you for your attention to this letter of appeal.
24On December 23, 2009, the Board of Directors replied to the applicant’s internal grievance and advised the applicant that 1) a “thorough” investigation of the alleged sexual misconduct had been conducted by the Executive Committee; 2) the current ED agreed to meet with the applicant to acknowledge that there could have been an unsafe environment for the applicant, and 3) the applicant would not be reimbursed.
25The current ED offered to retain a human resources professional to mediate with the applicant to “help re-build trust” and “create safety” for the applicant. It appears that the respondent wanted to address the applicant’s inability to trust the respondent, and to find ways for her to work better with management. Mediation was attempted, but it appears that the process did not resolve problems between the applicant and the respondent. The applicant claims that the discussion and conduct of the mediator and management during mediation violated the Code, as they made false statements and tried to impose a “mediation agreement” on the Applicant.
26By May 1, 2010, the Board confirmed there would be no more mediation, and that it was time to move forward. While the applicant argues that communications between herself and the respondent continued beyond May 1, 2010, thus prolonging the grievance and mediation processes, I find that the date by which the applicant ought to have known they were over was May 1, 2010. Therefore, assuming without finding that the applicant’s characterization of the mediation and grievance processes is correct, any allegation about these issues must have been filed within a year from May 1, 2010. The Application was not filed until August 10, 2011; therefore, any allegations with respect to the respondent’s handling of the grievance and mediation processes are out of time.
27The Tribunal will schedule a preliminary hearing where evidence may be led in order to deal with the applicant’s good faith argument that she retained counsel from August 2010 onwards, and counsel advised her that she need not file an Application with respect to the grievance and mediation processes.
28Also, having reviewed the Application and the applicant’s submissions, I see nothing clearly described in the Application with respect to the grievance and the mediation processes which, if true, would constitute a poisoned environment or reprisal as defined by the Code; therefore, it appears that this aspect of the Application may have no reasonable prospect of success.
29Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
30Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:
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.
31The preliminary hearing, therefore, will also address whether the allegation that the grievance and mediation processes constituted reprisal or created a poisoned environment should be dismissed on the basis that it has no reasonable prospect of success. This aspect of the preliminary hearing will be held under Rule 19A, above, and will not require evidence. Instead, as noted above at para. 28, the focus will be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation. As noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.”
Allegations that 2010 supervision was reprisal
32The applicant also takes the position that the respondent reprised against her because the applicant’s current supervisor, supported by the current ED, repeatedly disciplined her unfairly in 2010 for performance issues that she alleges were at least in part because of the internal grievance which she characterizes as claiming or enforcing her rights under the Code. The last possible date of supervisory reprisal was the applicant’s last day of work, August 6, 2010, when her current supervisor allegedly mocked her. The Application was filed more than a year later and is therefore out of time.
33The upcoming preliminary hearing will therefore also deal with the applicant’s good faith argument that, by September 2010, she retained counsel who advised her of the limitation period to file an Application with respect to the allegedly unfair discipline and supervision in 2010. Evidence may be led with respect to the applicant’s argument that she was relying on legal advice with respect to limitation periods.
34Also, there is no indication that the applicant has or can point to any evidence to link the allegedly unfair discipline or supervision in 2010 with reprisal under the Code because, as noted above, reprisal must be intended as reprisal for the claiming or enforcing of Code rights. Therefore, the applicant must make submissions at the preliminary hearing on what evidence she has or can point to, beyond mere speculation, that would support the allegations related to the allegedly unfair discipline or supervision. After considering these submissions the Tribunal may determine (under Rule 19A) whether these allegations should be dismissed on the basis that they have no reasonable prospect of success.
Respondent’s refusal to increase the applicant’s pay
35With respect to the allegation that the respondent refused the applicant’s request for a pay increase in January 2009 as reprisal for the applicant’s report of the ED’s alleged 2005 misconduct, the applicant argues that the reprisal was ongoing given that the reprisal recurred with each paycheque until the date of the applicant’s last pay in November 2010 and therefore the reprisal continued to a date within a year of the filing of the Application on August 10, 2011. (See Garrie v. Janus Joan Inc., 2012 HRTO 1955). Without deciding at this stage whether the continuation of the applicant’s salary at a rate less than she demanded constitutes a recurring reprisal, I note that the applicant points to no evidentiary basis to establish that the refusal to increase the pay was intended by the ED to reprise against the applicant as would be required to satisfy section 8 of the Code.
36While arguably within time, it appears that the Application does not reference any evidence to support the allegation that the applicant’s ED decided to reprise against her by not increasing her pay as she wished. At the preliminary hearing the applicant will be provided an opportunity to make submissions on what evidence she has or can point to, beyond mere speculation, that would support this allegation of reprisal. After considering these submissions the Tribunal may determine (under Rule 19A) whether these allegations should be dismissed on the basis that they have no reasonable prospect of success.
Withdrawal of pay
37On November 1, 2010, the respondent’s counsel advised the applicant’s counsel, “further to [their] conversation,” that the respondent would no longer pay the applicant’s salary. He wrote:
It appears that your client is claiming that she is disabled and as a result she should be making a claim for short-term disability benefits with the ED. In the circumstances, the organization will continue to keep her listed as an employee and will pay all of her benefits except for long-term disability premiums. The employees pay those premiums for obvious reasons…
We would like to talk to you about ensuring that your client maintains her status…
38The applicant claims that the termination of the applicant’s pay is discriminatory. While this allegation is within time, it is not clear on what legal basis this allegation might reasonably be considered to amount to a Code violation given that the applicant appeared to have exhausted her sick and vacation credits. Accordingly, this allegation respecting the cessation of salary will also be addressed at the preliminary hearing. The applicant will be provided an opportunity to make submissions on what evidence she has or can point to, beyond mere speculation, that would support this allegation. After considering her submissions, the Tribunal may determine (under Rule 19A) whether the allegation should be dismissed on the basis that it has no reasonable prospect of success.
Communications with the respondent and events after last day worked
39In terms of allegations of violations of the Code after August 6, 2010 that arise from events or incidents that are unrelated to disability, the applicant’s position is that the letter dated August 10, 2010 from the Board to the applicant was a violation of the Code, at least in so far as it makes false statements and demands confidentiality. She also alleges that the respondent’s October 6, 2010 letter, written by its counsel, is dismissive of the applicant’s “special concerns and insulting to her personally.”
40While timely, it is unclear on what basis these allegations, even if true, might reasonably be construed as discrimination within the meaning of the Code as it is not clear on what basis either letter discriminates against the applicant, reprises against her, or creates a poisoned environment because of sex or gender. Nor is it clear that the letters constitute in themselves an intention to reprise against the applicant for claiming or enforcing her rights under the Code. Therefore, these allegations with respect to the respondent’s letters of August 10, 2010 and October 6, 2010 will also be addressed at the upcoming preliminary hearing. The applicant should be prepared to provide submissions on how these allegations might reasonably be considered to amount to discrimination on the basis of a Code-protected right. The parties should also be prepared to make submissions with respect to the admissibility of letters sent by counsel.
Allegations relating to disability
Refusal to reimburse sick leave credits
41The Application does not clearly state why exactly the applicant believes that the respondent discriminated against her because of disability. It appears from her submissions, however, that her allegations in part refer to the respondent’s refusal to reimburse sick leave credits to the applicant when she left work for April and May in 2009.
42The alleged refusal to reimburse sick leave credits is out of time because the applicant was informed by the Board’s December 21, 2009 letter that it was confirming management’s refusal. The Application was filed more than a year later. The applicant’s good faith argument that she retained counsel by September 2010 who advised her she need not file an Application with respect to the refusal of sick leave credits must be dealt with at the preliminary hearing where evidence may be led.
43Also, given that the respondent did not appear to hinder the applicant’s sick leave in April and May 2009, either before or during the leave, and it appears that the allegation of a Code violation because of disability with respect to the leave is only linked to the refusal of the reimbursement of sick leave credits, I am unclear as to what legal argument would support or establish that the refusal amounts to discrimination because of disability.
44Accordingly, this allegation will also be addressed, under Rule 19A, at the preliminary hearing. The applicant should be prepared to provide submissions on how the refusal to reimburse sick leave credits might reasonably constitute discrimination because of disability, and whether there is no reasonable prospect that the allegation will succeed.
Refusal to modify work
45The allegations that relate to disability also refer to the applicant’s need for accommodation in 2010 with respect to a request to stop some of her counselling work. The Application was filed more than a year after the applicant stopped work and counselling altogether. Therefore, any requests for modifications to counselling duties are out of time. The applicant’s good faith argument that she retained counsel by September 2010 who may have advised her that she need not file an Application with respect to the refusal of modifying counselling work will be dealt with at the preliminary hearing where evidence may be led.
46These allegations will also be addressed at the preliminary hearing under Rule 19A because there appears to be an absence in the Application of references to evidence substantiating the allegations. It appears from materials filed that the counselling work concerning the applicant was being discontinued or was not being assigned to the applicant. Accordingly, the applicant may not have evidence or may not be able to point to any evidence that modifications to her counselling duties were denied. This raises the question of whether the allegation should be dismissed as having no reasonable prospect of success.
47Another allegation of failure to accommodate disability-related needs is that the respondent is refusing to remediate the workplace so that it is no longer poisoned for the applicant. The position of the applicant is that the allegedly poisoned environment prevents her from returning to work because of her disability. This allegation appears to conflict with some of the documents filed by the applicant which state that she is entirely unable to work. There is only one reference in the file to the possibility that the applicant may have been able to return to work despite her illness, and that is a letter from the applicant’s counsel dated June 20, 2011 which appears to be at the end of a series of letters between counsel negotiating a settlement of the parties’ dispute. In that letter, the applicant’s counsel seeks confirmation from the respondent’s counsel that the workplace is poisoned for the applicant, and seeks a proposal from the respondent on how it “proposes to remediate the workplace so that [the applicant] could return to work.” The respondent apparently did not reply before the Application was filed at the Tribunal.
48I find this allegation is timely. However, given that there appears to be no evidence that the workplace was poisoned or that the applicant was well enough to return to the workplace, no matter how it might be modified, the applicant must be prepared at the preliminary hearing to describe in her submissions what evidence she will use to substantiate her alleged need to be accommodated. After considering these submissions, the Tribunal may determine (under Rule 19A) whether these allegations should be dismissed on the basis that they have no reasonable prospect of success.
summary of dismissal of certain allegations
49As stated above in paragraph 20, the allegations that the alleged 2005 sexual misconduct of the accountant by the ED constitutes discrimination or sexual harassment of the applicant are dismissed.
50The allegations related to the 2005 incident with respect to poisoned environment and failure to investigate are also dismissed.
general directions for the preliminary hearing
51The Tribunal will schedule a preliminary hearing that will enable the parties to make submissions and provide evidence, if necessary, on the issue of good faith with respect to the allegations I have found to be out of time. They have been identified in the paragraphs above that are underlined. The parties will also have an opportunity to make submissions with respect to whether any party will experience substantial prejudice because of the delay. Submissions must be exchanged and filed at least 20 days in advance of the preliminary hearing.
52The preliminary hearing will be in person so that the applicant and any counsel upon whose testimony she wishes to rely may testify with respect to their conversations about limitation periods for filing allegations made in the Application. The respondent may also wish to have witnesses testify with respect to any substantial prejudice. The parties must deliver to each other and file with the Tribunal, at least 20 days before the preliminary hearing, the documents upon which they intend to rely and summaries of what witnesses are expected to say with respect to the good faith and substantial prejudice issues.
53The applicant’s previous counsel and her present counsel are responsible for determining their professional responsibilities, and, in particular, the present counsel must deliver to the respondent and file with the Tribunal submissions regarding his ability to testify and represent the applicant. These submissions must be delivered to the respondent and filed at least 20 days in advance of the preliminary hearing. The respondent may file reply submissions at least 10 days in advance of the preliminary hearing.
54The preliminary hearing will also address and allow for submissions on whether some or all of the remaining allegations, described and underlined above, should be dismissed under Rule 19A because they have no reasonable prospect of success.
55The preliminary hearing will also address and allow for submissions on whether the respondent’s counsel’s letters are admissible.
56Any written submissions must be exchanged between the parties and filed at the Tribunal at least 20 days before the preliminary hearing.
57The Tribunal will dismiss allegations if it determines that they either:
Are out of time and the delay was not incurred in good faith, or was in good faith but caused substantial prejudice to the respondent; or
Have no reasonable prospect of success.
58If the Tribunal finds that only some of the allegations in the Application should be dismissed for delay or for having no reasonable prospect of success, the remaining allegations will continue in the Tribunal process. The Application may be dismissed in whole or in part.
next step
59The Tribunal will schedule an in-person, one-day, preliminary hearing for the adjudication of the above preliminary issues.
Dated at Toronto, this 28th day of January, 2014.
“Signed by”
Mary Truemner
Vice-chair