Kreps v. Superior North Catholic District School Board, 2014 HRTO 957

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dyann Kreps Applicant

-and-

Superior North Catholic District School Board Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: June 27, 2014 Citation: 2014 HRTO 957 Indexed as: Kreps v. Superior North Catholic District School Board

APPEARANCES

Dyann Kreps, Applicant Mary Catherine Chambers, Counsel

Superior North Catholic District School Board, Respondent Eric Roher, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age.

2In her Application, filed August 9, 2013, the applicant alleges four incidents to support her allegation of age discrimination: the hiring and selection of a Principal at St. Hilary Catholic School in April 2011; the hiring and selection of a “Math Coach/Student Work Study Teacher” in May 2011; the hiring and selection of a Principal at Holy Angels Catholic School in Schreiber in April 2013; and, the hiring and selection of a Principal at St. Joseph Catholic School in Geraldton in April 2013.

3The applicant indicates that she applied for each of the positions, had superior qualifications but was not hired for any of the positions. She claims that all of the successful candidates were younger than the applicant, who was 55 at the time of the first competition.

4A summary hearing was held on June 9, 2014 to determine whether the Application has any reasonable prospect of success, as well as to determine whether some or all of the applicant’s allegations should be dismissed for delay.

SUBMISSIONS

5The applicant argues that there is no delay because the four competitions form a series and the Application was submitted within a year following the last competition.

6In relation to the issue of whether the Application has a reasonable prospect of success, the applicant asserted that her age was a factor in the respondent’s decision to not hire her for any of the positions. She claims that she was qualified for each of the positions and points to the fact that each of the successful candidates was younger than her.

7The respondent argued that the competitions were separate incidents and do not form a series and that the Tribunal does not have the jurisdiction to deal with the first two competitions because they occurred well over a year prior to the date the Application was filed by the applicant and that with respect to those competitions the applicant has not provided any good faith explanation for the delay.

8Regarding the issue of whether the Application has a reasonable prospect of success, the respondent argues that there is no evidence to suggest the applicant’s age had any bearing on the actions of the respondent. The respondent indicates that in the absence of any indication that the allegations are supported by evidence, they are merely assertions of discrimination.

ANALYSIS AND DECISION

Delay

9Section 34 of the Code provides that an Application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for the filing of an application outside the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent.

10The Application was filed August 9, 2013. The events the applicant complains about occurred in April 2011, May 2011, and April, 2013. Considered individually the events that occurred in April and May 2011 are outside of the one-year time limit under section 34(1) of the Code unless it can be established they are part of a series of events that culminated with the April, 2013 job competitions.

11Generally, events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than one year between events has been deemed to interrupt a series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12In determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues.

13The first two job competitions are separated from the April, 2013 job competitions by almost two years, a significant period of time. According to the respondent, the job competitions are separate and discrete events that involve different positions, different regions within the respondent’s operations and different decision-makers.

14In my view, in the circumstances of this case, the first two job competitions do not form a series of events for the purposes of section 34 of the Code. While all the job competitions involve the staffing practices of the respondent, the first two competitions are so separate in terms of time, location and decision-makers that I cannot conclude that they form part of a series of incidents.

15Was the delay in filing the Application in regards to the first two job competitions in good faith? To establish good faith, the applicant must at a minimum provide some reasonable explanation for the delay in filing the application: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

16In her submissions, the applicant essentially attributed her delay in filing her Application with respect to the 2011 job competitions by the fact that she did not want to believe that her employer was acting in a discriminatory manner and that she did not consider the possibility of filing an application with the Tribunal until she felt certain that her employer had violated the Code. Apparently, the applicant did not feel this certainty until her experience with respect to the 2013 job competitions.

17I am not satisfied that the applicant’s delay of almost two years in filing her Application with respect to the 2011 job competitions was incurred in good faith. I do not accept that waiting until an applicant is certain that there has been a breach of the Code constitutes a good faith reason for a delay in pursuing a human rights claim within the time period set out in the Code.

18There is no evidence that the applicant lacked the capacity to pursue a claim in a timely manner. As such, the applicant has failed to establish that she acted with all due diligence in pursuing her claim with respect to the 2011 job competitions, and has not met her onus of providing a reasonable explanation for the delay.

19Given this finding, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

20Accordingly, the allegations which relate to the 2011 job competitions are dismissed as being untimely.

Reasonable Prospect of Success

21I now must consider whether the Application with respect to the remaining allegations have a reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing dealing with reasonable prospect of success:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

22The applicant submits that she will testify to the following; (1) that she applied for the Schreiber position and the Geraldton position; (2) that she was more qualified for those positions than the people who were hired for those positions; (3) that she was not interviewed for either position; (4) that the persons hired for those positions are less qualified than the applicant; and, (5) the persons hired for those positions are substantially younger than the applicant.

23In my view, assuming the applicant’s allegations can be proven at a hearing there are facts that may establish a link between her age and the decision not to hire her for either position.

24The respondent will undoubtedly dispute much of this evidence. Issues of credibility and what inferences should be drawn from the evidence should be resolved by the vice-chair or member hearing the case on the merits. In addition, evidence which relates to the decision not to hire the applicant is in the possession of the respondent.

25I cannot find at this stage that the application has no reasonable prospect of success. Accordingly, the Application as it relates to the remaining allegations will proceed.

26The Registrar will schedule mediation as the parties have agreed to mediate.

27I am not seized.