Bailliu v. Bruyere Continuing Care, 2015 HRTO 135

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie-Anne Bailliu

Applicant

-and-

Bruyere Continuing Care, University of Ottawa, Pamela Eisener-Parsche and Anne Harley

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: January 29, 2015

Citation: 2015 HRTO 135

Indexed as: Bailliu v. Bruyere Continuing Care

APPEARANCES

Leslie-Anne Bailliu, Applicant Self-represented

Bruyere Continuing Care, Respondent Jacquie Dagher, Counsel

University of Ottawa, Respondent David Bolger, Counsel

Pamela Eisener-Parsche and Anne Harley, Respondents Jennifer Katsuno, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of ethnic origin, sex, family status and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant, who is a medical doctor, had hospital privileges at Bruyere Continuing Care (“Bruyere”). She alleges that she was discriminated against in hiring processes in 2009, 2010 and 2011. The position she hoped to secure in 2010 and 2011 was one that was jointly funded by both Bruyere and the University of Ottawa.

3The applicant also alleges that she was bullied by her hospital supervisor in 2011 and that this was condoned by the then Chief of Staff at Bruyere. Allegedly she filed a complaint of harassment which she claims was investigated and rejected by the Chief of Staff in 2012. She alleges that the Chief of Staff then accused her of disruptive behaviour.

4The Tribunal sent to the applicant a letter on July 17, 2014 directing her to provide submissions in relation to the question of whether her Application should be dismissed for delay. This is because under s. 34 of the Code the Tribunal will not accept an application if it has been filed more than a year after the last alleged incident of discrimination, unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The Application was filed on April 9, 2014. In the Application the applicant indicated that the date of the last incident of discrimination was September 18, 2012.

5The applicant filed submissions in which she referenced a number of instances which the applicant believes are examples of discrimination since 2012 (the “new allegations”). Included was her allegation that she had no choice but to resign her position at Bruyere in February 2013. As well the applicant indicated that she filed a complaint of harassment with Bruyere on November 5, 2013, that Bruyere hired an external investigator to look into the matter, that on March 19, 2014 Bruyere advised her by letter that the investigator determined that her complaint was unfounded and that Bruyere refuses to disclose to her the investigator’s report. In addition the applicant claims that on March 28, 2014 she applied for a position at the University of Ottawa, that the process was tainted by discrimination and that she was not appointed to the position.

6In light of the new allegations made by the applicant in her submissions, the Tribunal, in a September 3, 2014 Case Assessment Direction, directed a summary hearing by teleconference to deal with two issues, delay and whether the application has a reasonable prospect of success. With respect to delay the Tribunal indicated: “Specifically what needs to be determined here is whether the allegations which span a period from 2010 to March 2014 are sufficiently connected to constitute as series of incidents within the meaning of s. 34(1) of the Code.”

7A Notice of Summary Hearing was issued by the Tribunal on October 6, 2014 scheduling the summary hearing by teleconference on January 16, 2015. At the hearing, I heard submissions from all of the parties.

analysis and decision

8The Tribunal has interpreted the phrase “series of incidents” set out in s. 34(1)(b) of the Code as requiring that the incidents be connected to each other in terms of their timing and their subject matter. The Tribunal has determined in other cases that a gap in time of more than 12 months will in most cases interrupt the series of incidents. (see Chintaman v. Toronto District School Board, 2009 HRTO 1225).

9In the absence of the new allegations, it is quite clear that the Application is out of time having been filed more than 16 months after the alleged last incident of discrimination. However, the allegations in the Application taken together with the new allegations, if determined to be a series of incidents, would make the Application timely. In my view, save for the hiring processes in 2009 and 2010, there is no gap in time of more than a year between the allegations which might lead to the conclusion that the series of incidents have been interrupted.

10However, there appears to be a gap of more than one year between the events starting in 2011 and the hiring processes in 2009 and 2010. That being said, I find that the hiring processes in 2009 and 2010 do not form part of the series of events and therefore are untimely allegations. The applicant did not provide any good faith explanation for the delay in raising these two events with the Tribunal. For these reasons, the allegations regarding the 2009 and 2010 hiring processes are removed from the Application and the Application is amended accordingly.

11Are the remaining alleged instances of discrimination sufficiently connected in terms of their subject matter to be considered a series? It seems to me that they are. The applicant alleges adverse interaction with the respondents relating to her employment over a course of time. I acknowledge the argument of the Respondents that the applicant was an independent contractor who had hospital privileges and not an employee of the hospital. However, I am assuming, without deciding, for the purposes of this Interim Decision, and at this early stage in the process, that the Application is with respect to “employment” as that term has been interpreted under the Code. Nonetheless, the respondents are not precluded from raising the argument in their respective Responses.

12In my view, the applicant is alleging a pattern or theme of harassment related to her employment that tainted her interactions with the respondents over the course of her relationship with the respondents. Save for the 2009 and 2010 hiring processes, I find that the alleged instances of discrimination are sufficiently connected to be considered a series. Accordingly, I find that the Application, except for the 2009 and 2010 hiring processes, is timely and that there is no basis to dismiss the Application on the basis of delay.

13With respect to reasonable prospect of success, I am of the view that at this stage, it is not appropriate to make any findings with respect to the applicant’s allegations in her amended Application or her new allegations. I heard no sworn testimony during the course of the summary hearing and the respondents have not yet been provided with the opportunity to submit formal Responses to the Application.

14It is sufficient to say at this point that the applicant has satisfied me that she may be able to establish a link between the events alleged to have occurred and the grounds upon which she made the claim. Therefore, I cannot find that there is no reasonable prospect that her Application will succeed. The Application is not dismissed and will continue in the Tribunal process.

15Given the new allegations, the Tribunal directs the applicant’s attention to Rules 1.7(c) and 17 of the Tribunal’s Rules of Procedure. The applicant should take steps to ensure that the new allegations upon which she would rely at a hearing are set out in the Application. The applicant has 14 days from the date of this Interim Decision to file an amended Application.

16Following receipt of the amended Application, the Tribunal will deliver a Notice of Application to the respondents, which will specify a Response deadline.

17I am not seized of this matter.