McGovern v. 920852 Ontario Inc. o/a Final Touch Services & Alladin Carpet Cleaning, 2014 HRTO 1340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anouka McGovern

Applicant

-and-

920852 Ontario Inc. o/a Final Touch Services & Alladin Carpet Cleaning and Leslie Perrin

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 10, 2014 Citation: 2014 HRTO 1340 Indexed as: McGovern v. 92085 Ontario Inc. o/a Final Touch Services & Alladin Carpet Cleaning

APPEARANCES

Anouka McGovern, Applicant Self-represented

92085 Ontario Inc. o/a Final Touch Services & Alladin Carpet Cleaning, Respondent Rod Goodall, Representative

Leslie Perrin, Respondent Self-represented

1This is an Application filed on January 13, 2014 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 reprisal.

Background

2The applicant is an employee of the organizational respondent and the individual respondent is one of the applicant's supervisors. In the Application, the applicant alleges that in early January 2014 the individual respondent improperly altered her time sheets on which her pay is based. The applicant states that she met with the individual respondent to discuss why she altered the applicant's time sheets. The applicant was not able to convince the individual respondent to rescind the alterations to the time sheets, which resulted in reduced pay for the applicant. The applicant also alleges that she was reprimanded for insubordination on April 25, 2012 when she refused to discuss a work issue with a supervisor when she was on a work site. The applicant states that she was not given an opportunity to explain her actions or apologize. The applicant states that she initially refused to sign the reprimand, but when she later decided to sign the respondents altered it to include untrue allegations.

3On January 29, 2014, the Tribunal issued a Notice of Intent to Dismiss (the "Notice"). The Tribunal advised the applicant that the Application did not identify any specific violations of the Code allegedly committed by the applicant and that she did not explain how the respondents' behaviour amounted to a "reprisal" within the meaning of the Code. The Tribunal directed the applicant to file submissions responding to the issues identified in the Notice by February 28, 2014.

4The applicant filed submissions on February 11, 2014. The applicant submitted that she informed the respondents when she was hired in February 2012 that she was available to work between 8:30 a.m. and 3:30 p.m. in order to be home for her children after school. The applicant submitted that on April 24, 2012 she also complained that her shift ended at 4:30 p.m., which infringed upon her right to be home when her children arrived at home from school. The applicant stated that the respondents scheduled her to work past 3:30 p.m. on numerous occasions and that she suffered reprisals, including altering her time sheets, when she complained. The applicant submitted that the issue has recently resurfaced because her older child no longer resides with her and therefore cannot supervise her younger child. The applicant also submitted that in January 2012 she was subject to different rules regarding the use of company vehicles that other employees whose availability to work is not curtailed by family responsibilities. The applicant submitted that she was reprimanded for her use of a company vehicle in March 2014. The applicant stated that on one occasion she was working late and stopped on route to visit her children.

5By Case Assessment Direction ("CAD") dated March 7, 2014, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application, in whole or part, because of delay or because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that an applicant must be able to show a link between a respondent's alleged actions and one or more prohibited ground of discrimination. The Tribunal held the summary hearing on July 9, 2014 by teleconference.

Submissions

The Applicant's Submissions

6The applicant submitted that the incidents which allegedly occurred in 2012 strengthen her allegations regarding the incidents arising in 2014. When asked why she waited to file an Application with the Tribunal regarding the incidents arising in 2012, she stated that she was able to have the issues dealt with by the company at the time and that the issues arose again in 2014. The applicant submitted that she again tried to deal with her issues internally in 2014, but when this approach was unsuccessful she filed this Application. The applicant submitted that at the time she was hired she advised the respondents that she needed to be home at 3:30 p.m. when her children returned from school, but was often scheduled to work past this time. The applicant stated that each time she asserted her right to be home for her children she suffered some kind of reprisal, including being removed from the schedule or having her time sheets altered. The applicant submitted that in 2014 her older child was no longer living with her and was not available to supervise her younger child. The applicant therefore informed the respondents that she was again required to be home by 3:30 p.m. unless she received sufficient notice to be able to arrange a babysitter. The applicant submitted that the individual respondent was the only supervisor who did not meet this need.

7The respondents submitted that the issues the applicant identified as arising in 2012 were dealt with through the organizational respondent's internal processes. Consequently, the respondents submitted that these allegations were out of time. The respondents submitted that its practices regarding time sheet were appropriate and in no way connected to applicant's issues related to family status.

Analysis and Decision

Delay

8Section 34(1) and (2) state as follows:

(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.

9The Tribunal's approach to delay is set out in *Miller v. Prudential Lifestyles Real Estate*, 2009 HRTO 1241 at paragraphs 24 and 25:

In my view, where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, 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, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in *Klein v. Toronto Zionist Council*, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In *Lutz v. Toronto (City)*, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

10The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. See, for example, *Ramnath v. Peel Regional Police*, 2010 HRTO 548 at paragraph 12.

11The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, *Baisa v. Skills for Change* 2010 HRTO 1621. Similarly, incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, *Polihronakos v. Mississauga (City)* 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See, *Chintaman v. Toronto District School Board* 2009 HRTO 1225 and *Savage v. Toronto Transit Commission* 2010 HRTO 1360.

12In my view the applicant's allegation as set out in paragraph 2, above, regarding the reprimand for insubordination she received in April 2012 must be dismissed for delay. This allegation is factually distinct from the timely allegation contained in paragraph 2, above, that the respondents altered her time sheets in January 2014. While the applicant submitted that she complained about being scheduled past 3:30 a.m. on the day of the reprimand in 2012, she did not suggest that the reprimand was a reprisal for making this complaint. Rather, she stated that the reprisals took the form of time sheet alterations and removal from the schedule, although she did not identify a specific incident of this behaviour in 2012. The reprimand occurred in April 2012, which is more than one year before the alteration to her time sheet which allegedly occurred in January 2014. Consequently, I find that the reprimand occurring in April 2012 does not form a series with the timely incident identified in the Application. The applicant did not file a timely Application regarding the reprimand she received in April 2012 because she dealt with the issue through the organizational respondent's internal processes, apparently successfully, and raises the issue in this Application to bolster her timely allegations. Waiting for another process to address a concern does not amount to a good faith explanation for delay and the materials and submissions before me indicate that the applicant did not have a concern regarding her human rights for more than a year prior to the filing of this Application. The applicant's allegation that she received an improper reprimand in April 2012 is dismissed for delay.

No Reasonable Prospect of Success

13The applicant submitted in response to the Notice that she was unfairly disciplined for her use of a company vehicle in March 2014. The applicant stated that she visited her children when she was driving a company car while working at night. However, she pointed to no evidence that would suggest that the respondents disciplined her because she visited her children, as opposed to some other unauthorized stop. Consequently, I find this allegation has no reasonable prospect of success and it is dismissed.

Time Sheet Allegation to Continue

14Having reviewed the materials and submissions presented by the parties I am not prepared to find that the applicant's timely allegation, i.e., that the individual respondent's amendment to her time sheet was a reprisal for asserting her right to accommodation related to her family status, has no reasonable prospect of success. Pursuant to Rule 19A.6, where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons. A finding that an Application does not have no reasonable prospect of success does not imply that the Application will be successful, but that a hearing of the merits is necessary to decide it.

Other Issues

15In a letter dated April 23, 2014 that the applicant filed with the Tribunal, the applicant identified a number of incidents that have occurred since she filed this Application. If the applicant wishes for these incidents to form part of this Application, she must request an amendment to the Application by filing a Request for an Order During Proceedings (Form 10) within 14 days of the date of this Interim Decision.

Order

16The Tribunal orders as follows;

1. The applicant's allegations regarding the reprimand she received in April 2012 is dismissed for delay;

2. The applicant's allegation that she was unfairly disciplined for her use of a company vehicle in March 2014 is dismissed;

3. If the applicant wishes to rely on the allegations set out in her letter of April 23, 2014, the applicant must file with the Tribunal and deliver to the respondents a Form 10 requesting to amend the Application; and

4. The Respondents shall file with the Tribunal a Response to the remaining allegations in the Application within 35 days of the date of this Interim Decision or within 35 days of the date the applicant files and delivers a Form 10, pursuant to paragraph 14(2), above.