Finlay v. Ontario (Finance), 2015 HRTO 399

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Finlay Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance, Dwight Duncan and Kathleen Wynne Respondents

DECISION

Adjudicator: Eli Fellman Date: March 26, 2015 Citation: 2015 HRTO 399 Indexed as: Finlay v. Ontario (Finance)

APPEARANCES

Kathleen Finlay, Applicant

J.R. Finlay, Representative

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance, Dwight Duncan and Kathleen Wynne, Respondents

Amy Leamen and Robert Ratcliffe, Counsel

Introduction

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging that the applicant was the subject to a reprisal for having enforced her rights under the Code, and was denied employment as a result. The Application was filed on October 17, 2013.

2By Case Assessment Direction dated December 19, 2013, the Tribunal directed that a summary hearing be held in this matter by teleconference. The parties were directed to make arguments relating to whether the Application should be dismissed as having no reasonable prospect of success because there is no link between the respondent’s alleged actions and a Code ground. The summary hearing was rescheduled twice at the request of the applicant.

3In addition to addressing this issue, the respondents’ written submissions for the summary hearing also assert that the Tribunal ought to dismiss the Application because the allegations were not brought in a timely manner. During the summary hearing both parties provided oral submissions on the delay issue.

The 2002 Human Rights Complaint

4The applicant was employed as a policy analyst by the Ontario Securities Commission (“OSC”). In 2002 she filed a complaint under the Code against the OSC, and its senior managers (the 2002 complaint). The 2002 complaint was settled in 2005 in accordance with a negotiated memorandum of settlement (the “2005 settlement”) the terms of which included withdrawal of the complaint and the applicant’s resignation from the OSC in return for a payment to the applicant and an agreement to respond to any inquiries from prospective employers in a “positive spirit” and “without derogatory or negative comments or interference” and advise the applicant whenever such inquiries are made.

Job search 2011-2013

5In 2011 the applicant contacted the OSC to discuss the possibility of rejoining it. The applicant understood that the individuals named in the 2002 complaint no longer worked there. The discussions were unsuccessful. The applicant believes this was because of her 2002 complaint.

6The applicant asserts that between September 2011 and March 2012 she had numerous meetings about employment opportunities with senior officials of regulatory bodies and industry associations within the financial services sector. These were also unsuccessful. She believes this was due to the fact that the individuals she was meeting with have strong connections with the OSC and the individuals named in the 2002 complaint. The Application does not provide any specific details about these job searches. The applicant’s representative indicated that some specific examples of meetings could be provided and witnesses would be called who took part in these meetings with the applicant.

7The applicant wrote to the OSC asking that it conduct an internal investigation into whether it had breached the 2005 settlement and the Code. The OSC did not agree to this request.

8In May 2012 the applicant was granted an interview for a position with the Financial Securities Commission of Ontario (“FSCO”). In July 2012 she was informed that she was not the successful candidate. The applicant believes this was because the chair of the interview panel was aware of her 2002 complaint. During the hearing the applicant’s representative suggested that the applicant had disclosed the 2002 complaint to FSCO, although no mention is made of this in the Application.

9On May 8, 2012, the applicant wrote to the personal respondent Dwight Duncan (the “Minister”), who was then Minister of Finance, accusing the OSC of spreading derogatory statements about her internally and with prospective employers. The Minister referred the matter to the organizational respondent’s Legal Services Branch. Several letters and emails were exchanged over the next several months. The applicant wrote again to the Minister on September 20, 2012 to complain that the organisational respondent had not shown a genuine interest in addressing her concerns. The Minister did not reply.

10The applicant wrote to the personal respondent Kathleen Wynne (the “Premier”) in April 2013 and again in August 2013 objecting to the Minister’s failure to respond to her concerns. The Premier did not respond.

11In May 2013 the applicant applied for two positions with the Legislative Research Service of the Office of the Legislative Assembly similar to a position she had held approximately 30 years before. In June and July 2013 the applicant learned that she had not been selected for an interview for either position. The applicant states that she requested feedback to assist her in future job applications, but received none. The applicant wrote to the executive director for human resources to express concern that she has been discriminated against in the recruitment process. She did not receive a reply.

12The applicant asserted that the failure of the Minister and the Premier to adequately respond to her written complaints about the OSC and FSCO should also be considered breaches of the Code. The applicant believes that their failure to respond was a form of reprisal for the 2002 complaint.

The 2013 Human Rights Application

13On September 30, 2013, the applicant filed an Application, HRTO File 2013-15635-I (the “2013 Application”), with the Tribunal naming the Office of the Legislative Assembly as the respondent and alleging discrimination and reprisal in the recruitment process for the research service positions.

14In 2013 HRTO 1962, the Tribunal dismissed the 2013 Application as having no reasonable prospect for success. The Tribunal found at para 8:

The applicant makes no assertion that she raised human rights concerns with the respondent. Rather, she attributes the respondent’s decision not to interview her and its failure to provide her feedback to a human rights complaint she filed against another employer 11 years ago. This allegation appears to be highly speculative and, despite having the opportunity to do so, the applicant provided no basis for her assumption that the respondent was somehow aware of her complaint against the OSC, an unrelated employer. Accordingly, the applicant’s allegation of reprisal amounts to a bare assertion.

SUMMARY HEARING PROCESS

15Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

16Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

NO REASONABLE PROSPECT OF SUCCESS

17The allegations against the OSC, FSCO and the Minister all occurred more than one year before this Application was filed. As discussed below, these allegations may be considered untimely due to the delay between the alleged incident and the date the Application was filed.

18However, I understand the applicant to be asserting that all of the events described in the Application form part of a series of incidents intended as a reprisal for her 2002 complaint, including the Premier’s failure to respond to her letters and the fact that she was not selected for an interview with the Legislative Research Service of the Office of the Legislative Assembly.

19The applicant wrote to the Premier in April 2013 and again in August 2013. This is less than one year after the Application was filed, and is therefore timely.

20The applicant learned in June and July 2013 that she had not been selected for an interview for either position with the Legislative Research Service of the Office of the Legislative Assembly. This is also less than one year after the Application was filed, and is therefore timely.

21If all of events described in the Application form part of a series of incidents intended as a reprisal for her 2002 complaint as claimed by the applicant, then all of the allegations can be considered by the Tribunal as the last two alleged events occurred less than one year after the Application was filed.

22It is the applicant’s theory that all of the incidents are related because there is a wide-ranging attempt within the provincial government, and the Ministry of Finance in particular, to deny her employment in the public service in reprisal for her 2002 complaint against the OSC.

23Even if I were to accept the applicant`s theory and find that all of events described in the Application form part of a series of incidents, the Application should not proceed to a hearing because there is no reasonable prospect of success.

24The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. Unlike a discrimination allegation where it is not necessary for an applicant to prove intention, where reprisal is alleged, an application must establish that the action was taken with intent to retaliate or punish.

25The applicant was not able to identify any available evidence that may establish, on a balance of probabilities, that her Code rights were violated because OSC, FSCO, the Minister or the Premier intended to deny her employment opportunities as a reprisal for her 2002 human rights complaint against the OSC. None of the named respondents have any meaningful connection to the OSC, which is an arm`s length regulatory body operating under its own statutory authority. Moreover, the complaint against the OSC was resolved a decade ago, and the applicant acknowledges that the individuals named in her 2002 complaint are no longer employed by the OSC.

26The applicant’s suggestion that there is a wide-ranging attempt within the provincial government to deny her employment is entirely speculative and implausible, and unsupported by evidence. While the applicant asserts that inferences can be drawn against the respondents, Tribunal hearings are not intended as an opportunity for parties to conduct a discovery in the hope of finding plausible evidence to support a speculative theory.

27In addition, the allegation respecting the two positions at the Legislative Research Service of the Office of the Legislative Assembly concerns the allegedly discriminatory conduct of the Legislative Assembly which is not a party to this Application. The applicant’s 2013 Application contains the very same allegation against the Legislative Assembly. Merely changing the name of the respondent does not alter the fact that the applicant raised this allegation in her 2013 Application, and the Tribunal has already issued a final decision addressing this allegation. This gives rise to the question of whether allowing the applicant to include this allegation would amount to an abuse of process, even if the named respondents to this Application could somehow be linked to the allegation.

28The Tribunal has held that the doctrine of “abuse of process” can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an “abuse of process” are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of “abuse of process” is on the integrity of the administrative justice. See Campbell v. Toronto District School Board, 2008 HRTO 62, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

29The allegation against the Legislative Assembly has already been squarely considered and dismissed by the Tribunal. Allowing the applicant to re-litigate this allegation by simply changing the name of the respondent would be an abuse of process in the circumstances.

DELAY

30Section 34 of the Code provides:

(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.

31Section 34 means that the Tribunal will not exercise its discretion to consider an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and b. no substantial prejudice will result to any person affected by the delay.

32As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24:

(…) 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.

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.

33In the event that all of the allegations contained in the Application do not form part of a series of incidents as claimed by the applicant and should instead be considered as separate alleged incidents of reprisal, the allegations relating to the OSC, FSCO and the Minister must be dismissed as untimely.

34The allegation that in the fall of 2011 the OSC was unwilling to discuss the possibility of the applicant rejoining the OSC due to the applicant’s previous human rights complaint against the OSC occurred more than one year before this Application was filed.

35The allegation that applicant’s job search between September 2011 and March 2012 was unsuccessful because the individuals she was meeting with have strong connections with the OSC and the individuals named in the 2002 complaint occurred more than one year before this Application was filed.

36The allegation that FSCO did not hire the applicant in July 2012 in reprisal for the 2002 complaint occurred more than one year before this Application was filed.

37The communication between the applicant and both the Minister and the organisational respondent ended on September 20, 2012. This is also more than one year before the Application was filed.

No good faith for the delay

38As the allegations relating to the OSC, FSCO and the Minister occurred more than one year before the Application was filed, these allegations can only be considered 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 in accordance with section 34(2) of the Code.

39In Miller at para. 24, the Tribunal held that 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. Further, the applicant bears the onus of proving that any delay was incurred in good faith and must provide a reasonable explanation as to why he or she did not pursue Code rights in a timely manner. See, for example, Klein v. Toronto Zionist Council 2009 HRTO 241.

40I find that the applicant has not established that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. The applicant suggested that the delay in filing was due to her attempt to have the Minister and the Premier respond to her complaints, and that their failure to respond may have been part of a deliberate plan to frustrate the applicant’s ability to pursue a remedy at the Tribunal or elsewhere. The fact that the applicant had chosen to write letters to the Minister and the Premier and was awaiting a response in no way prevented her from concurrently filing an application with the Tribunal containing her allegations relating to the OSC and FSCO. The applicant had every opportunity to file this Application within one year.

41Given my finding that the delay was not incurred in good faith, it is not necessary for me to consider the question of whether the respondent has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579 at para 16.

ORDER

42The Application is dismissed for the above reasons.