Amelia Leong v. Ontario (Attorney General), 2014 HRTO 311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amelia Leong Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General Respondent

DECISION

Adjudicator: Ena Chadha Date: March 10, 2014 Citation: 2014 HRTO 311 Indexed as: Leong v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Amelia Leong, Applicant ) Self-represented Her Majesty the Queen in the Right of Ontario as represented by the Attorney General, Respondent ) Jennifer Richards, Counsel

INTRODUCTION

1The applicant filed this Application on June 16, 2009, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, colour, ethnic origin and sex.

2The applicant’s narrative alleges that she was subjected to discriminatory treatment because of the respondent’s handling of matters in relation to her pay, including incorrect calculations and over-deductions from 2002 to 2007 and failing to address such discrepancies when the applicant raised her concerns in 2007 and 2008.

Procedural History of Application

3On June 25, 2009, the Tribunal’s Registrar issued a Notice of Intent to Dismiss, which informed the applicant that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The applicant filed submissions asserting that a recent 2009 pay stub proved that the respondent’s calculations were incorrect.

4The Tribunal issued Interim Decision 2009 HRTO 1209 directing that the Application proceed in the Tribunal’s process because it was not plain and obvious that the Application was filed more than one year from the last incident of alleged discrimination. The Tribunal noted that the Interim Decision was not final regarding the Tribunal’s jurisdiction over the Application.

5The respondent filed a Response on November 16, 2009. The respondent alleged that it properly handled the applicant’s pay claims and that it did not engage in any discrimination. The respondent noted that there were multiple attempts by its representatives and the applicant’s bargaining agents to resolve the applicant’s issues to no avail. The respondent further stated that the Application is unclear and it is difficult to discern what exactly the applicant is alleging in relation to the Code. The respondent requested that the Tribunal dismiss the Application as untimely and for failing to disclose a prima facie breach of the Code.

6The applicant filed a Reply on January 25, 2010, identifying various pay discrepancies from 2002 to 2008 and claiming that the pay stub issued in May 2009 further revealed that she was short-paid. In addition, the applicant stated that in 2008 and 2009 she experienced “enormous fear” that she may be “harmed or attacked” because of an “unknown loitering female” outside of her residence who could be connected to the respondent employer.

7From 2010 and onwards, the applicant authored numerous pieces of correspondence related to her insurance claims, postponing the Tribunal’s mediation, asserting that she was too ill to participate in person and requesting that the Tribunal’s process be conducted in writing, as well as indicating that that she was attempting to secure legal representation.

8On July 6, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to advise the Tribunal of any accommodation she required to allow her to participate in the Tribunal’s mediation or hearing process. The CAD directed the applicant to indicate her disability-related restrictions so that the Tribunal could canvass accommodative measures and to consider whether it was appropriate to hold the Application in abeyance. Although the applicant filed submissions reiterating the matters noted in paragraph 7, she did not provide information documenting her accommodation needs.

9In Interim Decision 2012 HRTO 1685, the Tribunal concluded that the applicant failed to provide sufficient clarification regarding her intentions and accommodation needs and, therefore, the Tribunal lacked particulars regarding what, if anything, could be done to facilitate the applicant’s participation and the progress of the Application. The Tribunal determined that, in these circumstances given the absence of adequate information, it would not be appropriate to hold the Application in abeyance.

10In accordance with directions set out in Interim Decision 2012 HRTO 1685, the parties filed submissions with respect to the issue of the Tribunal’s jurisdiction over the Application because of the timing of the applicant’s allegations and the applicant’s accommodation needs. The applicant’s materials included a copy of a brief handwritten doctor’s note simply stating that the applicant “is suffering from physical and mental disease” and “cannot be subjected to extra/any stress”.

11On December 17, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) requiring the applicant to indicate whether or not she wished to proceed by teleconference or in writing. The CAD stated that the Tribunal’s next steps were to consider (i) whether the Application should be dismissed on a summary basis as having no reasonable prospect of success and (ii) whether some or all of the Application is outside of the Tribunal’s jurisdiction because of delay. In response to the CAD, the applicant confirmed that she wished the hearing into these preliminary issues to proceed in writing. Subsequently, the parties exchanged further written submissions regarding the issues of reasonable prospect of success and delay.

SUMMARY OF APPLICATION

12Although the applicant has provided some typewritten submissions, much of the applicant’s allegations, including the Application narrative, are set out in several handwritten documents with marginalia, arrows and scribbles. The applicant has also filed numerous pay records with handwritten commentary.

13To the extent that the applicant’s materials are coherent and legible, it appears the applicant alleges discrimination and harassment relating to the original pay-focused allegations as contained in the Application narrative as follows:

a. The applicant alleges that since she commenced employment with the respondent in 2002, she had concerns regarding the accuracy of her pay;

b. From October 2006 to June 2007, she claims her sick pay was over-deducted;

c. In June and July 2007, the applicant expressed her concerns to the respondent about being short-paid for attendance at job competitions, lunch periods, regular hours of work, attendance at staff meetings and employment training sessions;

d. As of June 2008, the applicant has been off from work on long-term disability. The applicant alleges that the respondent provided an incorrect last day of work to the insurer;

e. The applicant alleges her repeated requests for timesheets documentation and excel records from 2002 to 2006 have not been satisfied;

f. The applicant alleges that a paystub provided in May 2009 again revealed an incorrect rate of pay and that her requests for further information were not resolved to her satisfaction; and

g. The applicant alleges that the respondent has issued two incorrect Records of Employment.

14The applicant’s submissions also appear to raise a variety of new allegations of discrimination and harassment regarding “gross acts of incivility”, tampering with her shoes, theft of tokens, false accusations, preferential selection of other employees for hours of work, inappropriate comments, a sexually offensive prank and reprisal following her 2004 internal complaint regarding the sex-related harassment.

SUMMARY OF PARTIES’ POSITIONS

Applicant

15The applicant submits that the Application is within the Tribunal’s jurisdiction because all events, including the new allegations of harassment, are part of ongoing discrimination connected to the incorrect pay and employment documents provided in 2009, which fall within the one-year limitation period of the Code.

16The applicant argues that there has been a lack of full disclosure from the respondent in that she has not received copies of her pay records, time sheets and daily attendance logs from 2002 to 2006. The applicant contends that if the respondent produced these documents she would be able to prove the discrepancies in the pay records. The applicant argues that the respondent clearly has something to hide in failing to disclose the pay and attendance documentation.

Respondent

17The respondent asserts that all of the Application should be dismissed due to delay. The respondent states that, while the applicant may have received her last pay stub in May 2009, the allegations pertain to alleged pay discrepancies in 2007 and 2008 and that some allegations relate to events as early as, or even before, December 2004 when the applicant filed an internal complaint.

18The respondent contends that the applicant’s delay was not incurred in good faith because she has not provided a reasonable explanation as to why she did not pursue her rights in a timely manner. The respondent argues to allow the untimely allegations to proceed will cause prejudice because some of the people who were involved in this case have moved and documents may no longer be available given the extent of the delay. Finally, the respondent argues that there is no reasonable prospect that the applicant could prove that her race, colour, ethnic origin and sex played a role in the alleged circumstances.

DECISION

19I find the allegations about events prior to June 2008 are out of time and cannot proceed. The balance of the Application is dismissed because there is no reasonable prospect that the applicant could prove a violation of the Code.

DELAY

Legal Principles

20Section 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 series of incidents of alleged discrimination. Section 34 states:

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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

21The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay: Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence and file an application within one year of the alleged discrimination.

22In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or whether the last incident is part of a series of incidents of alleged discrimination.

23The Tribunal has defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457. In determining whether the allegations constitute a series of incidents, the Tribunal examines whether the events may reasonably be viewed as a pattern of conduct with a common theme, similar parties and/or circumstances or whether the events are comprised of incidents relating to discrete and separate issues without some connection or nexus: AlSaigh v. University of Ottawa, 2012 HRTO 2 at para. 8, and cases cited therein.

24As such, to be a “series of incidents” there must be continuing acts of discrimination which in of themselves could be considered as separate contraventions: Visic v. Ontario Human Rights Commission, 2008 CanLII 20993. In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal applied the reasoning in Visic, supra, to delineate that “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.” The Tribunal in Garrie v. Janus Joan Inc., 2012 HRTO 1955, explained this concept as follows at para. 41:

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code.

25The Tribunal has found that a gap of more than one year between incidents in a series would in most cases interrupt the series: Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code may not be considered to form a series of incidents for the purposes of section 34(1)(b): Polihronakos v. Mississauga (City), 2010 HRTO 1433.

26If the application was filed beyond the one-year timeline, based on section 34(2), the Tribunal must next be satisfied that (a) the delay was incurred in good faith and, if so, (b) no substantial prejudice will result to any person affected by the delay.

27In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. As noted in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, to establish the delay was “incurred in good faith”, the applicant must show something more than simply an absence of bad faith.

28In assessing substantial prejudice, some factors that the Tribunal may consider include the length of the delay and the impact of the delay on the party’s ability to make full answer and defence, such as the availability of witnesses and documents, ability to investigate and retrieve evidence: AlSaigh, supra.

29Given that both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice where an applicant has failed to meet the good faith criteria: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

Findings

30The Application was filed in June 2009 and, therefore, any timely allegations consist of events from June 2008 and onwards.

31The applicant cites the May 2009 paystub as the last discriminatory event crystallizing the Code violations. The applicant alleges the discriminatory pay reductions go as far back as 2002 and 2006 and, therefore, are timely as related to the May 2009 allegations. The applicant appears to allege that other incidents of harassment and discrimination (as discussed in above-noted paragraph #14) are part of the discrimination she experienced connected to the timely events.

32The respondent disputes the May 2009 pay stub as the last event and contends that May 2009 pay stub pertains to alleged pay discrepancies in 2007 and 2008.

33I agree with the respondent’s interpretation of the chronology. While the applicant’s May 2009 pay stub is within one year of the date on which the applicant filed the Application, it appears that the May 2009 stub documented income calculations from past years, which the applicant had previously disputed with the respondent. The applicant is not alleging that she only discovered the alleged pay discrepancies in 2009. Rather, it appears the applicant is alleging that the May 2009 stub confirmed that she was previously improperly paid, which according to the applicant’s narrative, was a concern that she voiced in 2006 and 2007.

34In my view, the applicant’s allegations of pay inaccuracies as revealed in the May 2009 pay stub is not a continuing contravention, but rather, at most, is an example of the continuing effects of the alleged discrimination which occurred earlier, as discussed in Visic, supra, and Mafinezam, supra. Unlike in Garrie, supra, where the Tribunal found each new pay period was a fresh occurrence and thereby, formed part of a series of incidents, in the present case the May 2009 stub pertained to alleged incorrect pay calculations, which the applicant had been challenging for a number of years.

35In summary, I find that the reasoning in Visic, supra, and Mafinezam, supra, applies and the existence of erroneous pay calculations and the continuing effect of those contested payments do not constitute further incidents of discrimination or a series of incidents within the meaning of section 34 of the Code. As such, the allegations regarding the applicant’s pay calculations prior to June 2008 are out of time.

36Turning to the applicant’s explanation for the delay, I am not satisfied that she has demonstrated that the delay was incurred in good faith. In assessing whether good faith has been established, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. Factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.

37Based on the parties’ submissions, it seems that there were several junctures in the chronology where the applicant’s concerns of inaccurate pay prompted the applicant to voice and document her complaints, as well as to pursue her issues with various levels of the respondent organization. The respondent notes that the applicant filed an internal complaint in 2004 about alleged harassment that she described in her written submissions and that union representatives supported the applicant in multiple attempts to address her concerns. In addition, the parties’ documentation establishes that from 2006 onwards, the applicant corresponded and approached differing representatives of the respondent and also sought redress for related compensation complaints through the insurer.

38I have carefully considered the parties’ submissions and reviewed the narrative for indications of good faith. Although the applicant’s materials state that she experienced stress, anxiety and depression, the information provided by both parties confirms that the applicant has consistently pursued recourse through various avenues. I find that the applicant has not provided a good faith explanation for the delay in this case. There is no specific evidence on the basis of which the Tribunal can determine that the applicant’s mental health status precluded her from seeking timely human rights recourse, particularly given that the applicant filed an internal complaint with the respondent, sought assistance through her union, carried out a campaign of written correspondence documenting her concerns and launched an appeal regarding her insurance claims during the relevant time periods.

39The Tribunal has repeatedly held that the fact that a person sought recourse elsewhere or was waiting for other legal proceedings to conclude before advancing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application: Cartier, supra. As stated by the Tribunal in Dorriesfield v. Domtar, 2012 HRTO 23 at para. 21, “[i]t is settled law that pursuing other avenues of redress is not a good faith explanation for delay.” The parties’ submissions and materials indicate that for a number of years, notwithstanding any alleged disability-related challenges, the applicant sought to pursue her concerns through various avenues of recourse.

40I am not persuaded that the delay in bringing this Application regarding the events from 2002 to June 2008 was incurred in good faith. The applicant has not justified the delay for this period of time and has not explained why she did not pursue her rights earlier. Given the complaints and actions undertaken by the applicant prior to filing this Application, I am not satisfied that the delay in filing her Application was incurred in good faith.

41I conclude that the Tribunal does not have jurisdiction over the events prior to June 2008 because these allegations relate to events that took place before the one year limit and the delay was not incurred in good faith. As such, it is not necessary for me to consider whether substantial prejudice would result from the delay.

REASONABLE PROSPECT OF SUCCESS

Legal Principles

42For the purposes of a summary hearing review, the Tribunal is not evaluating whether the applicant’s claims are true or the impact of the alleged mistreatment. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

43In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing, 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.

44To assist the Tribunal’s consideration of whether an application has a reasonable prospect of success, an application must present sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. At this stage, an applicant is required to describe what evidence she has, or is reasonably available to her, that could demonstrate a link between the respondent’s actions and the alleged prohibited grounds of discrimination. Otherwise, an application has no reasonable prospect of success at a hearing and will be dismissed: Nassr v. Windsor-Essex Children’s Aid Society, 2013 HRTO 53.

45As the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27, and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10.

Findings

46In light of my decision that the Tribunal has no jurisdiction over the allegations that are untimely, I need only consider whether the allegations from June 2008 and onwards have no reasonable prospect of success. Again, to the extent that I can comprehend the applicant’s allegations, it appears that the timely 2009 complaints relate to the respondent’s provision of an erroneous Record of Employment (“ROE”) and the respondent’s maintenance of its position regarding incorrect calculations. I find that these parts of the Application must be dismissed as having no reasonable prospect of success because the applicant did not point to any evidence or expected evidence that could show a nexus between the respondent’s alleged conduct and the Code grounds that she cited in the Application or that she alleged in her written submissions.

47Aside from bald assertions that the May 2009 pay stub confirmed that she was previously short-paid and that she was again provided with an inaccurate ROE, the applicant did not demonstrate why she believes these incidents were related to any Code-protected grounds. While the applicant may genuinely believe that her pay was unfairly calculated or reduced because of her race, colour, ethnic origin and/or gender, the applicant did not elaborate on the basis that she believes there is a correlation between her Code rights and the pay inaccuracies and other alleged conduct. The Tribunal has repeatedly stated that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred.

48Having reviewed the voluminous materials the applicant filed, I conclude that the applicant did not highlight any evidence to support her allegations that the pay discrepancies or incorrect documentation were linked to her personal Code characteristics. Therefore, I find that the applicant has no reasonable prospect of demonstrating a link between her allegations and the Code. Thus, even assuming the applicant’s allegations were true, the applicant’s claims cannot reasonably be considered to amount to a violation of the Code because the applicant did not reference any evidence that the respondent’s conduct was connected directly or indirectly to the various grounds pled in the materials.

49Clearly, the applicant believes that the respondent has treated her unfairly by paying her less than she believes she was entitled to be paid. I find that the applicant has made these allegations without any evidence in support of a nexus between the impugned conduct and the Code. Simply claiming unfairness does not establish that there is a link between an applicant’s concerns and Code grounds. There are no facts alleged that, if true, would allow this Tribunal to conclude that the applicant was paid less than she was owed because of the applicant’s race, ethnic origin or gender.

50With regards to the applicant’s claim that the respondent is deliberately withholding attendance and pay records which would prove her allegations of incorrect calculations, I note that the applicant did not explain what aspects of the sought-after documents could establish a link between the erroneous calculations and the cited Code grounds. The applicant did not highlight anything contained in the documents, other than the alleged incorrect calculations, that would support her to establish a link between the inaccurate payments and a prohibited ground of discrimination under the Code.

51I appreciate, as stated in Dabic, supra, that “[e]vidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process”; however, even accepting that the respondent’s attendance and pay records contain the alleged inaccuracies, the applicant has merely made a bald assertion of discrimination (as well as a conspiracy to withhold documents). The applicant did not point to any aspects of the proposed evidence which she would rely on to demonstrate that she was short-paid, at least in part, because of ethnicity and gender.

52In conclusion, the applicant did not highlight any evidence, beyond her own belief, that the respondent’s incorrect pay calculations and ROE were connected to the prohibited grounds of discrimination under the Code. In these circumstances I find that the Application should be dismissed for no reasonable prospect of success.

CONCLUSION

53In summary, based on a close review of the parties’ submissions and documentation, I find the allegations prior to June 2008 are out of time and the applicant has failed to satisfactorily explain why she was unable to pursue her human rights claim in a timely manner. The applicant has not met the high onus the Tribunal requires to show that the delay in the filing of an Application was incurred in good faith. To the extent the Application makes allegations regarding events after June 2008, for the reasons stated above, I find that the Application has no reasonable prospect of success.

54Accordingly, the Application is dismissed.