Thelma Wood-Whittaker v. Sunnybrook Health Sciences Centre, 2015 HRTO 1567

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thelma Wood-Whittaker

Applicant

-and-

Sunnybrook Health Sciences Centre

Respondent

DECISION

Adjudicator: David Muir

Date: November 19, 2015

Citation: 2015 HRTO 1567

Indexed As: Wood-Whittaker v. Sunnybrook Health Sciences Centre

APPEARANCES

Thelma Wood-Whittaker, Applicant ) Self-represented

Sunnybrook Health Sciences ) Bonny Mak Waterfall, Counsel

Centre, Respondent )

INTRODUCTION

1On November 10, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that the respondent discriminated against her with respect to employment because of her race, colour, gender identity, record of offences, and association with a person identified by a Code ground. She also alleged that the respondent subjected her to reprisals.

2On April 1, 2015, the respondent filed a Response, which denied the allegations of discrimination and reprisal. The respondent also raised a number of preliminary issues and requested that the Application be dismissed on a preliminary basis.

3In a Case Assessment Direction issued on June 8, 2015, the Tribunal directed that a summary hearing be held to address the following preliminary issues:

1. Should part of the Application be dismissed pursuant to s. 34 of the Code because of delay?

2. Should part of the Application be dismissed pursuant to s. 45.1 of the Code because another proceeding has appropriately dealt with its substance and/or because it is an abuse of the Tribunal's process?

3. Should the whole Application be dismissed pursuant to Rule 19A of the Tribunal's Rules of Procedure because there is no reasonable prospect that it will succeed?

4In her Application the applicant made the following allegations:

a. That in August 2011, a supervisor failed to sign the applicant in as he said he would. That applicant alleges that she was disciplined as a result and later demoted. As a consequence of her demotion and discipline she was unable to apply for another promotion for two years.

b. That she was not successful in a job competition in August 2013 because the respondent deliberately miscalculated her seniority and then deliberately failed her in a test for the position.

c. That her dismissal was discriminatory because she was not made aware of any requirement that she document bereavement leaves when requested to do so. The applicant was dismissed from her employment when a number of bereavement leaves she had taken were challenged by the respondent and she was unable to provide supporting documentation to justify the leaves.

5The applicant believes that these events all befell her because she is a black West Indian woman.

6The Application is dismissed. I find that the allegations of discrimination in 2011 are untimely because they are said to have occurred more than one year prior to the filing of the Application and are unconnected to the other allegations made.

7I also find that the incidents of discrimination said to have occurred in August 2013 should be dismissed pursuant to section 45.1 of the Code because they were resolved in a settlement between the parties executed in March 2014.

8Finally I find that the Application as a whole should be dismissed because there is no evidence to which the applicant can point which would tend to establish that a factor in any of the respondent's alleged actions were the applicant's, race, colour, gender identity; record of offences or association. I also find that there is no evidence to which the applicant can point which would tend to establish that any of the respondent's actions were intended as reprisal for the applicant having raised a Code concern.

ANALYSIS

The Delay Issue

9Section 34 (1) and (2) of the Code read 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.

10The applicant makes allegations of discriminatory incidents in 2011, 2013 and 2014. The applicant asserts that they are connected in such a way as to constitute a series of incidents.

11I do not agree.

12The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination 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. The provision has been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

13The phrase "series of incidents" in section 34(1)(b) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified. On the other hand, the language of the section recognizes that it would not be appropriate that a human rights claimant file an Application at the first incident of what might be understood to be inappropriate treatment. The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative "series" may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame. See Chintaman v. Toronto District School Board, 2009 HRTO 1225.

14The gap between the incidents in 2011 and 2013 is two years. Such a lengthy gap in time is more than sufficient to interrupt the series. I would also observe that there is no evident connection between these events. The applicant argues that they are connected because during the two years the respondent did not properly calculate her seniority. The applicant alleges that this was deliberate. However, this is a bald assertion on her part for which there is no evidence that the applicant could identify. The Tribunal has held that an allegation which has no reasonable prospect of being established cannot be included in a putative series of incidents. See Garland v. Canusa-CPS, 2012 HRTO 1309 at para 12. In any event the calculation of her service credits is a payroll function unconnected to her line supervision – the source of her concern with respect to the 2011 incidents. In the absence of any evidence that these events are connected I have no basis to conclude that they were.

15The applicant provided no explanation for the delay. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was "incurred in good faith", the applicant must show something more than the absence of bad faith. As the applicant has provided no explanation there is no basis to conclude that the delay was incurred in good faith.

The Section 45.1 Issue

16Section 45.1 of the Code and Rule 22 of the Tribunal's Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, also provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. The Tribunal has held that filing a human rights application after signing a settlement with respect to the subject-matter of the application may constitute an abuse of the Tribunal's process, and where that is the case, such an application should be dismissed. See, for example, Legault v. Whitewater Seniors Residence, 2010 HRTO 1542.

17As indicated, the applicant alleges discrimination in respect of a promotion she believed she was entitled to in the summer of 2013. However, as noted earlier, the applicant's bargaining agent filed a grievance on her behalf in respect of this promotion. During the grievance procedure the parties resolved the issue in March 2014 on the basis that the applicant would be promoted to the position in spite of any alleged deficiencies in her application.

18The applicant does not dispute that she accepted the promotion and took no issue with the settlement at the time, although she claims now that she misunderstood the effect of the agreement in respect of back pay for the promotion that she expected to receive. In my view the alleged discrimination in this promotion in 2013 was resolved by the settlement and should not be re-litigated here.

No reasonable prospect of success

19I would also dismiss the remainder of this Application because it has no reasonable prospect of success. The Tribunal does not have the general power to deal with allegations of unfairness. To succeed in an Application, the applicant must be able to prove, on a balance of probabilities, discrimination on the basis of a Code ground or reprisal as defined in the Code.

20The applicant asserts that the respondent deliberately miscalculated her seniority and that as a result she initially did not receive the promotion in 2013. In addition to the fact that this issue was immediately addressed when it was brought to the respondent's attention and then the promotion issue was resolved in the grievance, there is no evidence to which the applicant can point that would tend to establish either that this error was deliberate or that a factor in the error was any of the grounds cited by the applicant.

21The applicant argues that her termination was discriminatory and that it was a reprisal for her earlier complaints. The applicant can point to no evidence that either was the case. The stated reason for her dismissal was that the respondent believed that she was fraudulently taking bereavement leaves and despite giving the applicant an opportunity to provide documentation to support the various leaves, she could not do so.

22The applicant argues that she was not warned that she would have to substantiate her leaves. In the absence of any indication that the applicant was treated differently than other employees suspected of taking unsupported bereavement leaves, this is not discriminatory. It goes without saying that an employer is normally entitled to require support for any leave from the workplace that an employee proposes to take or has taken. The fact that the employer asked for supporting documentation is not, without more, evidence of discrimination.

23To establish reprisal, the applicant must be able to prove reprisal as defined in the Code. Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

24In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

25There is no indication that the applicant had raised any human rights concerns in her prior complaints or grievances. Moreover there is no evidence to which the applicant can point that any of the actions of the respondent were intended as punishment for her having made any complaints in the past.

26Following the drafting of these reasons but prior to their release, the applicant provided post-hearing submissions. The respondent objected to them. Despite the respondent's objection, I have reviewed the applicant's written submissions; nothing in them addresses the issues identified above or changes my conclusion in any way.

ORDER

27For all of these reasons the Application is dismissed.