HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nancy Ferguson
Applicant
-and-
College of Physicians and Surgeons of Ontario
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Ferguson v. College of Physicians and Surgeons of Ontario
WRITTEN SUBMISSIONS
Nancy Ferguson, Applicant
Self-represented
College of Physicians and Surgeons of Ontario, Respondent
Brett Christen, Counsel
1This Application alleges discrimination with respect to employment because of disability, sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.
2This Interim Decision explains why the Application will not be dismissed for delay.
3The applicant worked for the respondent College from September of 2010 until her employment was terminated on November 22, 2012. Her job was to supervise the work of a team of Decision Administrators, who in turn would draft decisions that report the conclusions arising from investigations into complaints about members of the College.
4The applicant alleges that during the course of her employment the respondent discriminated against her in the following ways:
By denying her opportunities for advancement and promotion because of her sex and family status;
By scheduling her hours of work in a manner that was discriminatory based on sex and family status;
By harassing her and subjecting her to a poisoned work environment because of her sex; and
By terminating her employment without advising her of any concerns it had about the quality of work. The applicant alleges that her sex was a factor in this decision, in that the College would not have treated a male employee this way. She also alleges that she has a disability and, although she never informed the College of this fact, she would have done so if she had been told there were concerns about her performance. This, she claims, is also an instance of discrimination based on disability.
5The allegation of reprisal is that she raised a concern with the College that the College had failed to inform the police that it had evidence of criminal conduct by a member of the College. The victims of the alleged conduct were female patients. The applicant asserts that the College’s failure to report this was an act of discrimination against the women of Ontario. She claims that the termination of her employment was an act of reprisal against her for having raised this issue with the College.
6With the exception of the applicant’s termination from employment, all of the above incidents took place before November 22, 2012, which is one year before the filing of this Application.
7In its Response to the Application the respondent argues that any allegations that predate November 22, 2012 should be dismissed for delay. It also argues that all of the allegations should be dismissed as having no reasonable prospect of success.
8In her Reply the applicant argues that none of the allegations should be dismissed for delay, as they all form part of a pattern of conduct on the part of the respondent.
9Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are 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.
10At issue here is whether the allegations that predate the termination of the applicant’s employment constitute a series of incidents that then culminate in her termination on November 22, 2012.
11The decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, provides a useful review of the Tribunal’s decisions on this issue and a framework of analysis for approaching such cases.
12In this case each of the allegations relating to denials of opportunity for advancement, the scheduling of the applicant’s work hours and harassment at work could, if proven, be found to constitute separate violations of the Code. The allegations are related in kind. They all relate to working arrangements, namely the applicant’s hours of work, where she would perform her duties and the use of time in lieu of overtime pay. Many of the allegations involve the applicant’s interactions with the same manager. Finally, there are no significant gaps between these alleged incidents. Having regard to all these facts, I conclude that these allegations are sufficiently related in time and kind to form a series of incidents within the meaning of s.34(1)(b). The series culminates in the applicant’s termination.
13The allegation of discrimination based on disability and the allegation of reprisal are claimed to have formed part of the decision to terminate the applicant’s employment on November 22, 2012. The same is true of the alleged discriminatory application of the respondent’s Performance Management Policy. As a result those allegations are also not out of time.
14Just to be clear, this says nothing about the merits of the allegations. It is simply a conclusion that none of them should be struck out for delay.
15Regarding the respondent’s request that some or all of the allegations be dismissed as having no reasonable prospect of success, I do not think that it would be an effective use of the time and resources of the Tribunal or the parties to hold a separate summary hearing, when it is clear that a number of the allegations would, in any event, continue in the Tribunal’s process. In these circumstances, the merits of all of the allegations can be determined at the hearing of this Application.
order
16The request to dismiss this Application for delay is denied.
17The Registrar is requested to schedule the hearing of this Application.
Dated at Toronto, this 15th day of September, 2014.
“signed by”
Paul Aterman
Vice-chair