Stor v. Randstad Holding N.V., 2014 HRTO 1745

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniela Stor Applicant

-and-

Randstad Holding N.V. Respondent

RECONSIDERATION DECISION

Adjudicator: Mary Truemner Date: December 3, 2014 Citation: 2014 HRTO 1745 Indexed as: Stor v. Randstad Holding N.V.

WRITTEN SUBMISSIONS

Daniela Stor, Applicant Joseph H. Kary, Counsel

Randstad Holding N.V., Respondent Kate McNeill-Kellar, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability (gluten allergy) contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on June 24, 2013, and indicates that the last date of discrimination was October 17, 2011, more than one year before the Application was filed. Pursuant to the respondent’s request to dismiss the Application for delay, a preliminary hearing was held on March 14, 2014. On July 25, 2014, the Tribunal dismissed the Application as out of time, 2014 HRTO 1097, (“the Dismissal Decision”). The applicant filed a Request for Reconsideration which is partially allowed for the reasons below.

legislation

2Subsection 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident, or the last incident in a series of incidents, of alleged discrimination. Section 34(1) of the Code provides as follows:

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.

3Subsection 34(2) provides that a person may apply 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.

The dismissal decision

4Paragraph 4 of the Dismissal Decision outlined the applicant’s description of her work history as follows:

• She used an employment agency to find her work from 2007 until 2011. The employment agency, Spherion, [the respondent’s predecessor], usually placed the applicant with Nestle Canada Inc. (“Nestle”) to work in stints at one of its factories, although the employment agency placed her at least once with another company for a stint when Nestle was slow. Generally speaking, when a stint at Nestle was completed, Spherion would issue a Record of Employment (“ROE”) for the applicant, and then place her again to work there when she was needed. The applicant worked approximately half of each year through Spherion placements, most of which were at Nestle.
• The applicant has a gluten allergy. While cleaning out wafer trays in 2011, she noticed she had an allergic reaction, and alerted Nestle’s management to her allergy. As a result, she sometimes wore a mask or was assigned duties that did not require her to wear a mask, and she understood at the time that her allergy was not a problem for her continued employment with Nestle.
• The applicant did not receive work from Spherion in the summer of 2011 at Nestle which she thought was normal because she did not usually have work at Nestle during the summertime.
• By October 2011, the applicant was becoming concerned that she was not being placed at Nestle, and she telephoned her regular recruiter at Spherion who told her that there was nothing for her at Nestle. On October 17 2011, Spherion issued the applicant an ROE which the applicant claims indicated, “employee stated she was allergic to client’s products and could not complete assignment.” This was the first time that the applicant learned that Nestle did not want her to work at their factory because of her gluten allergy. The applicant told her regular recruiter that she thought this was discriminatory, and her regular recruiter said that her name would be kept on file and that Spherion would send her to other placements. The applicant points to this point in time as when a duty to accommodate disability arose for Spherion and thus the respondent.
• In December 2011, the applicant’s father died and she was grief-stricken.
• The applicant did not communicate again with anyone from Spherion or the respondent until filing her Application on June 24, 2013.

5The applicant argued that she understood, in October 2011, that Spherion was going to find her a placement with a client other than Nestle. She argued that the respondent had a duty to accommodate her disability and the duty was ongoing. She argued that it was not until June 2012, after hearing nothing from Spherion or the respondent, that enough time had passed for her to realize that the respondent was failing to accommodate her disability. She argued, therefore, that her Application is timely because it was filed on June 24, 2013, within one year after the date when she argued she came to the reasonable realization she was not being accommodated. At paragraphs 11-12 of the Dismissal Decision, the Tribunal provided reasons for not agreeing with the applicant and finding the Application to be out of time:

I agree with the applicant that some time would reasonably have needed to pass, from the date of the October 2011 discussion with her recruiter, before the applicant should have realized that Spherion failed in any duty to accommodate that it might have had. Spherion did not refuse to accommodate the applicant in the October 2011 discussion, or say anything that might be construed as a violation of the Code. To the contrary, Spherion agreed to find the applicant alternative work; however, when no offers were made to the applicant after the allegedly dormant “Christmas season” of 2011 and then throughout the Spring of 2012, the applicant ought to have known that any accommodation arguably required was not forthcoming. Given the pattern of her employment where the applicant worked half the year through Spherion placements, the applicant ought to have known, at the latest, after six months had passed since the October 2011 discussion, that Spherion or its successor (the respondent) failed in any duty to accommodate and therefore violated the Code. For her Application to be timely, then, it should have been filed on some date in April 2013. It was filed in June 2013, and the Application is therefore out of time.

I cannot agree with the applicant’s argument that the respondent’s failure to accommodate is ongoing and therefore the Code’s one year limitation period has not been triggered. While the respondent did not explicitly refuse to accommodate the applicant, the applicant ought to have understood by April 2012, in the circumstances, that its silence amounted to a refusal. At that point, the Code’s one year limitation period was triggered. Allowing an application as timely where an applicant knew or ought reasonably to have known in the circumstances that the respondent failed in a duty to accommodate, but subsequently sat back, not engaging further with a respondent for years, would lead to absurd results.

6Having found that the Application was filed out of time, the Dismissal Decision went on to consider whether the grief the applicant experienced as a result of her father’s death in December 2011 could lead to the Tribunal being satisfied that the delay was incurred in good faith. The Tribunal was not satisfied that the applicant established good faith, and dismissed the Application for delay.

the applicant’s reasons for the request for reconsideration

7On August 25, 2014, the applicant filed a Request for Reconsideration (“her Request”) with attached written submissions which summarize her arguments in the opening paragraph as follows:

a. The process of obtaining the evidence on which the adjudicator relied was flawed and contrary to principles of procedural fairness.

b. Relevant evidence, in the form of a letter from the respondent assuring the applicant that they were working with her and wanted to continue working with her, did not come to the attention of the Board, resulting in a finding of fact that contradicts the undisputed written record. This evidence would have affected the date at which the applicant should reasonably have assumed that she had been constructively dismissed, and would have in turn affected the adjudicator’s determination as to the date when the limitations period should have started to run.

c. The adjudicator did not consider or address relevant facts and arguments concerning the matter that were raised in the course of the hearing. The applicant told the Board that she had received legal advice that the limitations period was two years, not one; this issue was not considered by the adjudicator.

d. No recording was made of the telephone hearing, making meaningful reconsideration or appellate review in the special circumstances of this case impossible and constituting a denial of natural justice, requiring a rehearing.

8The applicant’s written submissions in support of her Request, and those filed later on October 30, 2014 argue beyond the above four points, but all her arguments appear to focus on alleged procedural unfairness and breach of natural justice, or on the alleged neglect of the Tribunal to address what is referred to above as “relevant evidence, in the form of a letter from the respondent…” and “legal advice that the limitations period was two years, not one”.

analysis

9Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

10Reconsideration is a discretionary remedy. The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

11Most importantly, the Tribunal has issued Rules governing reconsideration requests. Rule 26 states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

12The applicant relies on Rule 26.5 (c) and (d).

Reconsideration denied with respect to whether the Application was out of time

13The Tribunal does not normally record hearings, as referenced in Rule 3.7 of its Rules of Procedure. I note, in this regard, that at one time the Tribunal was required to record its hearings, but this statutory requirement was effectively repealed by the legislature in April 1995. However, as set out in its Practice Direction on Recording Hearings there are a number of different circumstances in which the recording of a hearing is contemplated and may occur. The applicant made no request to record her preliminary hearing. I do not agree with the applicant that not recording a hearing necessarily leads to a denial of natural justice, particularly here where there was no request to do so (see, for example, the extensive discussion of this issue in Omoruyi-Odin v. Toronto District School Board, 2002 CanLII 46518).

14The Tribunal did not take evidence from witnesses at the preliminary hearing. The purpose of the preliminary hearing was to look at the allegations, and to determine if the allegations were within time. References to facts in the Dismissal Decision were references to alleged facts. At various points in the preliminary hearing, some clarifications of allegations were required, and, when counsel did not have sufficient information to clarify them, he conferred with the applicant, and communicated the clarifications to the Tribunal. The Decision dismissed the Application on the basis that the allegations of what happened were out of time, not that what actually happened, or was found to have happened, was out of time.

15The set of alleged facts upon which the Tribunal relied to find the Application out of time included alleged facts related to the applicant’s alleged conversation in October 2011 with her placement worker at Spherion, and alleged facts related to any subsequent communications between the applicant and Spherion or the respondent.

16The email relied upon by the applicant to justify a reconsideration is a letter apparently emailed to the applicant from Spherion on December 21, 2011. It was referred to by the parties during the preliminary hearing, and provided to the Tribunal after, but prior to the Decision being issued. The email is about Spherion becoming a “Randstad company”. It states, in its entirety:

We’re making a change to better serve you!

As you are a valued partner, we are excited to provide you with some upcoming news. As of January 1, 2012, Spherion will become a Randstad company. Soon, you will benefit from the enhanced presence of a global brand, and from partnering with Canada?[sic]s recruitment leader, while continuing to get the specialized expertise and dedicated service you need.

Why are we doing this?

As of December 31, 2011 Randstad Interim Inc. (Randstad Canada) successfully completed the acquisition and tax close of the SFN Group, Inc. and all of its brands, which include Spherion, the Mergis Group and Technisource.

Through an internationally recognized brand that can be leveraged here and around the world, you will have access to a greater selection of career opportunities, in a wide variety of locations and industries, thanks to our ability to tap into a broader network of employers.

Will this affect the way we work together?

For now, you can continue to communicate with us the same way you used to.

In the weeks ahead, we will provide on-going communication to keep you up to date on the exciting change. Please rest assured that you will continue to receive the top-quality individual service you expect from us. We are as committed as ever to delivering what matters most to you ?[sic] solutions that will help you move your career aspirations forward.

If you have any questions or concerns in the meantime, please call 1-866-670-4291 or email us at questions@randstad.ca

We look forward to continuing as your recruitment partner and working with you to find the best solutions to meet your needs.

Kind regards,

Vice president & General Manager, Canada

Spherion Staffing Services

17The respondent does not dispute the contents of the email or that it was sent to the applicant on December 21, 2011. It is not a piece of evidence that involves any decision around credibility of evidence as implied by the applicant’s submissions. The applicant argues that it justifies a reconsideration of the Decision, because its contents establish that the applicant’s relationship with the respondent did not begin until January 1, 2012, and because evidence would be required to determine what time would reasonably need to pass before the applicant might appreciate that the respondent, as the new company, was not going to place her on a job.

18Given that six months was found by the Tribunal to be the period of time that the applicant could wait before realizing that she was not being accommodated, the applicant also essentially argues that she had until six months after the December 21, 2011 email to discover the alleged Code violation, and then a year to file the Application.

19The email does not change the result of the Decision. While the respondent asserted that the email was sent to all of its “partners” like the applicant, and the applicant implies that evidence is needed on this issue, there is no need for me to inquire into whether it was a generic email or one specifically crafted for the applicant. The contents say what they say. The applicant filed her Application on June 24, 2013. I find that there is nothing in the December 21, 2011 email that could reasonably suggest that the six month period the Decision found relevant should start later. If anything, the successor company, the respondent, promised in the email to increase the applicant’s employment opportunities. Nothing in the email stated or implied that she might expect a longer wait for a placement, or that there would be an interruption in service or employment.

20The email discusses the upcoming change to Spherion, and assures the applicant she is a valued partner, will have access to a greater selection of career opportunities, and may communicate with Spherion and its successor company, the respondent, in the same way she used to. If anything, by being told in the email that she would receive on-going communications from the respondent “in the coming weeks”, and then receiving nothing in the following weeks, the applicant might reasonably have understood after “weeks” passed, not months, that the respondent was not fulfilling what she alleges is an obligation under the Code. Certainly by April, 2012, the deemed discovery month in the Dismissal Decision, the applicant ought to have known that the respondent was not meeting its alleged obligation under the Code.

21Having reviewed the applicant’s submissions attached to the Request, her submissions dated October 30, 2014 and the respondent’s submissions dated August 26, 2014 and October 27, 2014, I do not agree with the applicant, in regard to the decision that the Application was filed late, that there has been a breach of natural justice or procedural fairness with respect to allegations being clarified or with respect to any other matter arising from the procedure in which the preliminary hearing was conducted. Nor do I agree that the finding that the Application was filed out of time conflicts with established case law or Tribunal procedure that involves a matter of general or public importance, nor that there are any factors that outweigh the public interest in the finality of Tribunal decisions.

22I dismiss the Request with respect to the applicant’s assertion that the Application was filed out of time.

Reconsideration allowed with respect to whether the delay was in good faith

23The applicant argues that the Dismissal Decision did not address her position that, if she was late in filing, the lateness was in good faith given that she received legal advice that she had two years, not one, to file an Application. As the respondent points out in its submissions, this assertion was not made in the Application in the applicant’s response to the question why the Application is being filed “more than one year after the last event.”

24At the time of writing the Dismissal Decision, I had understood that the applicant’s reference to “two years” that her counsel made during the hearing was with respect to an argument that the respondent cannot claim prejudice given its liability under the Limitations Act, 2002, S.O. 2002, c. 24, which allows an aggrieved person two years to file a claim in the courts. In reviewing my notes and the submissions of the parties, I agree with the applicant that she did argue, albeit for the first time at the preliminary hearing, that her lateness was in good faith because she received the wrong legal advice. I also agree that the Dismissal Decision failed to address her argument. In my opinion, this is a factor which outweighs the public interest in the finality of Tribunal decisions, particularly given the existence of Tribunal jurisprudence which has reconsidered decisions on the basis that delay is in good faith when caused by misleading legal advice relied upon by the applicant. (See, for example, Patterson v. Mississauga (City), 2012 HRTO 598).

25I also agree with the applicant that evidence is required on this issue.

26I grant the Request with respect to the applicant’s assertion that the Application was filed late in good faith.

direction

27The Tribunal will schedule a half-day preliminary hearing that will enable the parties to make submissions and provide evidence on the issue of good faith, and whether any party will experience substantial prejudice because of the delay with respect to the allegations I have found to be out of time.

28The preliminary hearing will be in person so that the applicant and her witnesses, including former legal advisors from the Human Rights Legal Support Centre, may testify with respect to their conversations about limitation periods for filing the Application. The applicant’s previous legal advisors and her present counsel are responsible for determining their professional responsibilities. If the applicant does not intend to call a witness and/or file documents from the Human Rights Legal Support Centre to support her claim that she received the legal advice that the limitation period was two years, not one year, to file her Application, then she must be prepared to argue why the Tribunal should not draw an adverse inference.

29At least 30 days before the preliminary hearing, the parties must deliver to each other and file with the Tribunal the documents upon which they intend to rely and summaries of what any witnesses are expected to say with respect to the good faith and substantial prejudice issues.