Tammy Caron v. Lakeside Plastics Limited and Ken Siddall, 2014 HRTO 958

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Caron

Applicant

-and-

Lakeside Plastics Limited and Ken Siddall

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 30, 2014

Citation: 2014 HRTO 958

Indexed as: Caron v. Lakeside Plastics Limited

APPEARANCES

Tammy Caron, Applicant

Shawn Weston, Representative

Lakeside Plastics Limited and Ken Siddall, Respondent

Claudio Martini, Counsel

1This is an Application filed on May 23, 2013, 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 disability, marital status, association with a person identified by a prohibited ground of discrimination and reprisal.

Background

2In her Application, the applicant states that she began working for the organizational respondent in December 1998. The applicant states that in January 2012 the organizational respondent required her to begin working on the midnight shift. The applicant states she was unable to work this shift because of restrictions imposed by work-related injuries and a sleep disorder, which her doctor verified. The applicant alleges that the organizational respondent refused to accommodate her restrictions and that the individual respondent tried to pressure the applicant into resigning her employment. The applicant states that another employee was permitted to work only on the day shift after she provided a doctor’s note in support of the request. The applicant states that she was only permitted to return to the day shift by agreeing to lift all of her restrictions that had been stipulated by the Workers Safety and Insurance Board and that the respondents harassed her about her use of the workers’ compensation system. The applicant states that the respondents subjected her to disproportionate scrutiny and discipline for minor workplace incidents.

3The applicant states that the organizational respondent terminated her employment for cause on March 19, 2012, for failing to inspect parts as required and for dishonestly asserting that she had in fact performed the required inspections. The applicant states that, when confronted, she admitted that she did not inspect parts as required and was initially dishonest about her failure. The applicant states, however, that her conduct occurred in the context of an extremely busy day and a poisoned work environment in which she was subject to harassment and discrimination contrary to the Code. The applicant states that the sanction of dismissal for cause was disproportionate and discriminatory. The applicant states that the respondents targeted her for dismissal because of her disabilities and conducted surveillance on her to find fault in her work.

4In an earlier Interim Decision in this matter, Caron v. Lakeside Plastics Limited, 2013 HRTO 1528, the Tribunal directed that a teleconference hearing would be held to deal with two preliminary issues: whether the Application should be dismissed in whole or part because of delay and whether the Application should be dismissed in whole or part because the substance of the Application was appropriately dealt with in another proceeding, pursuant to section 45.1 of the Code. With respect to the section 45.1 issue, the respondents submitted that a decision by the Employment Insurance Board of Referees under the Employment Insurance Act, S.C. 1996, c. 23, appropriately dealt with the issues arising in this Application. The Tribunal held the teleconference hearing on April 7, 2014.

Delay

5Section 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.

Submissions

6The applicant submitted that the Tribunal should not dismiss the Application for delay and made several arguments in that regard. First, the applicant submitted that the Application was filed within one year of two incidents of discrimination: the withdrawal of the applicant’s grievance regarding her dismissal by her union on May 25, 2012, and the respondents’ conduct during the Board of Referees hearing on June 7, 2012. Specifically, the applicant stated that the respondents brought defective parts to the hearing in support of their position in that proceeding. Second, the applicant submitted that the alleged incidents occurring prior to May 23, 2012 form a series with these timely incidents, pursuant to section 34(1)(b) of the Code. Third, the applicant stated that she complained to the respondents regarding harassment and discrimination, but the respondents did not investigate her complaint. The applicant states that this failure amounts to a continuing breach of the respondents’ Code obligations.

7Fourth, the applicant submitted that, if the Application is untimely, she has a good faith explanation for the delay. The applicant submitted that she took prompt action to enforce her Code rights by retaining a paralegal to represent her in June 2012. The applicant filed a letter from the paralegal explaining her role in assisting the applicant. According to the letter, the applicant’s intent was always to pursue a remedy for the violation of her human rights. The paralegal’s advice was to first pursue a duty of fair representation application at the Ontario Labour Relations Board (“OLRB”) and to defer filing an application with the Tribunal pending the outcome of that proceeding. The paralegal learned of the Code’s one-year time limit for filing applications on May 15, 2013, and understood that the last incident of discrimination was the withdrawal of the grievance on May 25, 2012. The paralegal referred the applicant to another legal representative who worked with the applicant to file her Application less than one week later.

8The respondents submitted that the last act attributed to the respondents was the dismissal of the applicant’s employment in March 2012. The respondents submitted that it was the applicant’s union, not the respondents, who withdrew her grievance on May 25, 2012; therefore, it makes no sense that the one-year time limit would run from that date. The respondents submitted that the applicant did not request an investigation and that her only complaint came in the form of her grievance, which her union withdrew. The respondents submitted that the organizational respondent tendered parts with obvious defects that the applicant failed to inspect to support the organizational respondent’s position at the Board of Referees hearing, which is not a discriminatory act. The respondents submitted that the applicant’s strategy was to wait for the outcome of the OLRB proceeding before filing her Application with the Tribunal. The respondents submitted that the Tribunal’s jurisprudence is clear that waiting for another proceeding to finish before filing with the Tribunal does not amount to good faith.

9In terms of prejudice, the respondents submitted that they should be able to rely on the finality of the mandatory one-year time limit and should not be required to defend an application filed after the expiry of the limitation period. The respondents submitted that they will be exposed to ongoing expenses if the Application proceeds.

Analysis and Decision

10The applicant’s first three arguments are without merit. The respondents had no involvement in the union’s decision to withdraw the applicant’s grievance and there is nothing improper or discriminatory about the respondents’ decision to participate in and adduce evidence during the Board of Referees hearing. Accordingly, neither of these incidents amount to an incident of discrimination attributable to the respondents that could form part of a series of incidents for the purposes of section 34(1)(b). The Application indicates that the applicant raised her concerns about harassment and discrimination in the grievance process, through her union. There is no dispute that the respondents stated that they would not reverse the decision to dismiss the applicant on April 25, 2012. Assuming the union made the respondents aware of the applicant’s concerns about harassment and discrimination, the respondents clearly indicated that they would not pursue them after April 25, 2012. In my view, the last arguably discriminatory incident that is attributable to the respondents was the denial of the applicant’s grievance on April 25, 2012. The respondents’ decision, to the extent the respondents declined to investigate complaints of harassment and discrimination, may be discriminatory. However, this decision was a discrete event and does not amount to a continuing breach of the Code. See Garrie v. Janus Joan Inc., 2012 HRTO 1955.

11The applicant filed this Application on May 23, 2013, more than one year after the last arguable incident of discrimination. Consequently, the applicant must provide a good faith explanation for the delay. The 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, 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, 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.

12The Tribunal has held that in certain circumstances reliance on legal advice may amount to good faith for the purposes of s. 34(2) of the Code. See Patterson v. Mississauga (City), 2012 HRTO 598. In this case, the applicant engaged a legal representative to assist her with her claims against the respondents very shortly after her union withdrew her grievance regarding her dismissal. In my view, the applicant acted with due diligence to pursue her Code rights. The respondents are correct that the Tribunal has stated, on numerous occasions, that waiting for the completion of another proceeding does not amount to a good faith explanation for filing an application beyond the one-year limitation period. However, the applicant’s legal representative failed to turn her mind to the existence of a statutory limitation period until after it expired. Accordingly, the delay in filing the Application was the direct result of the paralegal’s error and the applicant’s good faith reliance on the legal advice arising from that, not because the applicant failed to take timely action to pursue her human rights or because of the strategy per se. In these circumstances, I find that the delay in filing this Application was incurred in good faith.

13Having found the delay in filing the Application was incurred in good faith, I must next determine whether allowing the Application to proceed will result in substantial prejudice to the respondents. The respondents made minimal submissions regarding the issue of prejudice and gave no indication that the applicant’s delay in filing the Application would impair their ability to respond to the Application. As a result, I find that there is no proper basis on which to conclude that allowing the Application to proceed would result in substantial prejudice to the respondents.

Section 45.1

14Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

15The respondents submitted that the applicant’s application to the OLRB remains pending. The respondents submit that the applicant commenced the OLRB proceeding first and that this proceeding will deal with the applicant’s human rights issues. Accordingly, the respondents submitted that the proper forum in which to contest her alleged wrongful termination, as well as her allegation that the union did not properly represent her, is through the OLRB proceeding.

16The respondents submitted that the Tribunal’s case law indicates that a hearing before the Board of Referees is a “proceeding” for the purposes of section 45.1. The respondents submitted that the gist of both the applicant’s claim for employment insurance and this Application was that the respondents were “out to get” the applicant because of her claims to the WSIB and her disability. The respondents submitted that the Board of Referees dealt with all of the issues identified in the Application, including the individual respondent’s supposed vendetta against her, discipline for a minor trip and fall, the requirement to work midnights and whether the respondent “set up” the applicant in order to dismiss her. The respondents noted that the organizational respondent took the position that it had always accommodated the applicant and that the reasons it dismissed the applicant was her performance, not because of any personal vendetta. The respondent submitted that the Board of Referees found that the organizational respondent dismissed the applicant because she failed to inspect parts as required by the organizational respondent’s policies and for no other reason. The respondent submitted that the Board of Referees rejected the applicant’s arguments that the organizational respondent had an ulterior motive to dismiss her. The respondent submitted that the Tribunal may not revisit the Board of Referees’ findings and that allowing the Application to proceed could result in inconsistent findings.

17The applicant submitted that the Board of Referees only dealt with the issue of whether the applicant was dismissed for failure to perform her duties. The applicant submitted that the Board of Referees did not deal with the issues of whether the respondents met their duty to accommodate the applicant, whether the applicant was subject to harassment because of her disability, whether she was subject to discrimination at work and whether she was subjected to a poisoned work environment. The applicant submitted that she did not view the hearing before the Board of Referees as a proceeding that would deal with human rights issues and therefore did not present witness and documents on those issues. Pursuant to the Tribunal’s decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, the applicant submitted that the Tribunal must consider the reasonable expectations of the parties. In this respect, the applicant submitted that the parties were not litigating human rights issues before the Board of referees; therefore, it was not within the applicant’s reasonable expectations that she would be precluded from pursuing her claims to the Tribunal as a result of that proceeding.

Analysis and Decision

18To date, there has been no proceeding before the OLRB and the applicant stated during the preliminary hearing that the applicant’s application to the OLRB has been deferred pending the outcome of this Application. Accordingly section 45.1 does not apply to the applicant’s application to the OLRB.

19The Tribunal has found that an appeal to the Board of Referees is a proceeding for the purposes of section 45.1. See, for example, Yakymova v. Slovenian Linden Foundation, 2012 HRTO 1075; Caldeira v. 2068006 Ontario, 2010 HRTO 920; Mustafa v. Mississauga (City), 2010 HRTO 2477; and Islam v. Ball, 2009 HRTO 2164.

20The Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code, which is nearly identical to section 45.1 of the Code. In that decision, the Court described the analysis a Tribunal should undertake when assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, as follows:

“…whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…” (at paragraph 37).

21The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paragraph 25. In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal stated as follows at paragraph 25:

This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an Application or part of an Application to succeed, the Application or part must be dismissed.

22In Claybourn, the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, and found that in deciding whether a human rights claim ought to be dismissed pursuant to section 45.1, the Tribunal must consider not only whether the issue in before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

23In my view, the Board of Referees appropriately dealt with the issue of the termination of the applicant’s employment. The facts regarding the applicant’s dismissal are the same in this Application as in the hearing before the Board of Referees. The Appeal Docket and the Board’s decision indicate that the applicant believed her dismissal was disproportionate and that the individual respondent had a personal vendetta against her because of her WSIB claims, that the respondents dismissed her before she was injured again and that the respondents tried to pressure into quitting her job. The applicant explained that her failure to check parts properly was a one-time occurrence on a particularly difficult day for her. The applicant makes essentially the same allegations and provides the same explanation for her performance in this Application. The Board of Referees explicitly rejected the applicant’s allegations that her dismissal was the result of these ulterior motives attributed to the respondents and found that the applicant’s misconduct was the sole reason for the termination of her employment. The Board of Referees finding makes it impossible for her allegations regarding her dismissal in this Application to succeed unless the Tribunal were to make contrary findings. The Tribunal has no authority to review Board of Referee decisions; however, the applicant was entitled to appeal the Board’s decision to an Umpire under the Employment Insurance Act.

24The applicant had a significant financial stake in the appeal to the Board of Referees and she had an opportunity to make her case to the Board and also to have the Board’s decision reviewed by an Umpire. In these circumstances, it would not in my view be within the reasonable expectation of the parties that the applicant would be able to re-litigate the issue of her dismissal before this Tribunal. Consequently, I find that the Board of Referees proceeding appropriately dealt with the issue of the termination of the applicant's employment and that it would not be unfair to exercise my discretion under section 45.1. Accordingly, the allegations that the termination of the applicant’s employment was contrary to the Code are dismissed.

25I agree, however, that the Board of Referees did not deal with the applicant’s allegations that, prior to her dismissal, the respondents failed to accommodate her disability-related needs, subjected her to discrimination and harassment because of disability and subjected her to a poisoned work environment because of her disability. Consequently, there is no basis for dismissing these allegations pursuant to section 45.1 and the Application shall proceed regarding these issues.

Direction

26The respondents have not yet filed a Response to the Application. Within 35 days of the date of this Interim Decision the respondents shall file a Response to the remaining allegations in this Application. The applicant may file with the Tribunal and deliver to the respondents a Rely to the Response not later than 14 days after the applicant receives the Response. Rules 8 and 9 of the Tribunal’s Rules of Procedure set out the requirements regarding Responses and Replies, respectively.

27I am not seized of this matter.