HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Maher Hussain
Applicant
-and-
Wendy Ross
Respondent
A N D B E T W E E N:
Maher Hussain
Applicant
-and-
William Osler Health Centre
Respondent
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INTERIM DECISION
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Adjudicator: Mary Truemner
Indexed as: Hussain v. Ross
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WRITTEN SUBMISSIONS
Maher Hussain, Applicant
Self-represented
Wendy Ross and William Osler Health Centre, Respondents
Patricia B. Murray, Counsel
Introduction
1These consolidated Applications filed on April 7, 2014 allege discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the respondents’ request that the Tribunal dismiss certain allegations for delay.
background
2The applicant was employed by the corporate respondent and managed by the personal respondent. The events alleged to be discriminatory in each of the Applications are identical. In them, the applicant describes how, while he was working for the respondents, he applied for positions as “Addiction Counsellor” five times, beginning in 2010 or earlier, and ending in April 2011. He was not successful in obtaining those positions. He believes that a reason for the respondents not offering him the positions was linked to his race, colour, ancestry, place of origin, ethnic origin and creed.
3The next allegedly discriminatory event described in the Applications is a discipline related to pamphlets in December 2010. The Application then describes suspensions from September 2011 to December 2011 related to his relationship with a client outside of the service relationship. It would appear that the applicant believes these disciplinary actions by the respondents were motivated, at least in part, by his race, colour, ancestry, place of origin, ethnic origin and creed.
4Chronologically, the next allegedly discriminatory event described in the Application is the termination of the applicant’s employment on February 20, 2014. The applicant alleges that when he was confronted with the reasons for the termination at the termination meeting that day, he told the personal respondent that he had a disability which was responsible for the behaviour being cited to justify the termination. The applicant alleges that his request not to have his employment terminated was a request for accommodation of his needs arising from his disability, and the respondents refused to provide that accommodation. Instead, they terminated his employment.
5On December 1, 2014, the Tribunal sent a Notice of Hearing to the parties, indicating that the hearing would begin on May 21, 2015, and documents were to be filed and exchanged in advance, pursuant to the Tribunal’s Rules of Procedure, by April 7, 2015.
request to dismiss for delay
6The respondents filed a Request for Order during Proceedings and written submissions on January 23, 2015, seeking to have paragraphs of the Applications struck because they describe events that occurred more than one year before the Applications were filed, and seeking to have the allegations linked to those events dismissed for delay.
7The applicant filed a response to the Request and written submissions, arguing that the allegations in those paragraphs should not be dismissed for delay because they describe events that are part of a series of incidents that ended with the termination which was within a year of the Applications being filed.
The Law
8Sections 34(1) and (2) of the Code provide:
(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 subsection 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.
9Section 34(1) is a mandatory limitation period established under the Code. As stated in Groh v. Waterloo (Regional Municipality), 2014 HRTO 1774, when considering whether allegations constitute a series of incidents within the meaning of section 34(1)(b), the Tribunal generally considers the following factors:
- whether there is an series of incidents or whether there is a single act of alleged discrimination with continuing effects: Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”);
- whether the incidents involve fresh steps taken by the parties, with each step giving rise to a separate alleged breach of the Code (Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, as cited in Garrie at para. 40);
- whether the alleged discriminatory incidents are part of a pattern or series of incidents of a similar nature or character: Garrie; and
- whether any gap of a year or more interrupts the series of incidents. See, e.g.: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; Chintaman v. Toronto District School Board, 2009 HRTO 1225; and Killeen v. Soncin Construction, 2013 HRTO 350
10The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
Analysis
11In this case, there does not appear to be any link between the alleged discriminatory reasons for the incidents of 2011 and earlier, and the alleged discriminatory reason for the 2014 incident. The Application makes no allegation about the 2011 and earlier incidents being linked to disability. Instead it explicitly states they are linked to race, colour, ancestry, place of origin, ethnic origin and creed. The Application makes no allegation about the 2014 incident being linked to anything but disability. Given this, and given that the period is over two years between the 2014 termination and the 2011 incidents, I find that the incidents of 2011 and earlier described in the Application are not sufficiently linked to the 2014 incident for them to be part of a series of incidents which ends with the termination. Without them being part of a series, I cannot find that allegations related to 2011 and earlier have been filed within one year.
12The applicant provided no information or argument that the delay in filing the allegations of 2011 and earlier was incurred in good faith, despite receiving the written submissions of the respondents quoting s.34 of the Code, and describing how good faith would be required for the Tribunal not to dismiss. Having found that the allegations of 2011 and earlier were not filed within one year of the incidents upon which they are based, and having no basis to decide that the delay was incurred in good faith, there is no need for me to assess whether the respondents are substantially prejudiced by the delay. I dismiss the allegations of 2011 and earlier.
Next Steps
13The parties must file by April 7, 2015 the documents listed on page 3 of the Notice of Hearing that are relevant to the allegation that the termination of the applicant’s employment constitutes discrimination because of disability. On May 21, 2015, the first day of the hearing, the Tribunal will offer to the parties mediation-adjudication pursuant to Rule 15A of the Tribunal’s Rules of Procedure. If the parties refuse to try mediation-adjudication, or if it is not successful at resolving the matter, then the applicant must be prepared to testify. Any other witnesses that the applicant may call need not attend until the afternoon of the first day of the hearing, and the applicant will have an opportunity to telephone any of his witnesses at noon to tell them whether the Tribunal expects that they will need to testify on the first day.
Dated at Toronto, this 23^rd^ day of March, 2015.
“Signed by”
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Mary Truemner
Vice-chair