O.L. v. Sun Media Corporation, 2015 HRTO 554

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

O.L.

Applicant

-and-

Sun Media Corporation c.o.b. as The Toronto Sun, Quebecor Inc.,

Chris Krygiel, Chris Harrison, Mike Power, James Wallace,

Kevin Hann, Jonathan Kingstone and Lisa Lisle

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: May 1, 2015

Citation: 2015 HRTO 554

Indexed as: O.L. v. Sun Media Corporation

APPEARANCES

O.L., Applicant

Ranjan Agarwal, Counsel

Sun Media Corporation c.o.b. as The Toronto Sun, Chris Krygiel, Chris Harrison, Mike Power, James Wallace, Kevin Hann, Jonathan Kingstone and Lisa Lisle, Respondents

Richard Charney, Counsel

Introduction

1This Application, filed on December 12, 2012, alleges reprisal and discrimination with respect to employment because of race, colour, ethnic origin, disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent, Sun Media Corporation c.o.b. as The Toronto Sun (“the corporate respondent”) employed the applicant from 1991 until her termination on January 11, 2012.

3The applicant alleges the respondent embarked on a campaign to terminate her employment because she is a racialized woman with a disability. She alleges her Chinese background and soft-spokenness made her an easy target for harassment and discrimination after she became disabled.

4On January 13, 2001 the applicant broke her ankle and subsequently developed reflex sympathetic dystrophy (“RSD”). She had three surgeries in four years and was left with some limitations.

5In her Application, the applicant alleges various incidents of discrimination commencing in 1991, as follows:

a. She was told in 1991 when she was hired it was because she was Chinese;

b. She was denied vacation days between 2001 and 2006;

c. She was denied overtime pay between 1991 and 2001;

d. She was denied sabbatical time earned prior to the injury and not paid out upon termination;

e. She was laid off out of sequence in 2006;

f. The corporate respondent refused to address physical barriers in the workplace beginning in 2006 - she had to use a service elevator in summer/fall of 2011 because of construction, and an alternate elevator in December, 2011 because both the usual elevator and the service elevator were out of service; she had difficulties accessing the washroom between 2007 and 2010 when the automatic door openers were installed; and she was not provided with an ergonomic chair until 2007;

g. In 2006, she was denied a graduated return to work plan and endured threats of her pay ceasing if she did not return to work;

h. She was followed by a private investigator hired by the corporate respondent in 2011;

i. She was denied the ability to work from home in 2006; and

j. She was terminated on January 10, 2012 because of surveillance findings.

Background

6This Application was deferred on May 13, 2013 because of an outstanding grievance with respect to the applicant’s termination. The arbitrator rendered his decision on April 7, 2014 and the Application subsequently was reactivated.

7When the Tribunal reactivated this Application in August, 2014, it ordered this preliminary hearing to determine the issues the respondents raised in their Form 10 Request for an Order During Proceedings (“RFOP”) before the deferral supplemented by their June 12, 2014 Request for an Order During Proceedings, namely:

1. Whether some or all of the allegations should be dismissed pursuant to s. 45.1 of the Code;

2. Whether some or all of the allegations of reprisal and discrimination based on race, colour, ethnic origin and sex have no reasonable prospect of success, or are untimely, or both;

3. Whether some or all of the personal respondents and the respondent, Quebecor Inc., should be removed as respondents; and

4. Whether Quebecor Media Inc. should be added as a respondent.

8The applicant filed a March 13, 2013 Form 11 Response to the respondents’ RFOP, in which she included additional allegations of discrimination as follows:

a. In 2007-2008, she was the only reporter trained to edit and post articles and photos on the corporate respondent’s website;

b. She was told to answer phones more than other reporters between 2006 and 2012;

c. She was the only reporter being trained to edit videotape in November and December, 2012 [sic];

d. She was asked to shoot video stand ups of other reporters in the newsroom from the fall of 2011 until January, 2012 while other reporters shot video outside of the newsroom;

e. She was not offered any free vacations between 2006 and 2012 when some reporters were offered two or three a year.

9Both parties filed submissions for this preliminary hearing. In her October 24, 2014 submissions the applicant sought to include additional allegations she had not made before, as follows:

a. Inappropriate comments were made about the applicant’s consumption of Chinese food and her appearance;

b. Complaints were made by disgruntled employees about the accommodations for her disability;

c. Her promotion to full-time status was delayed in favour of other non-racialized reporters with equal or lesser seniority; and

d. She was subjected to differential treatment by co-workers because they viewed her through stereotypical perceptions of Chinese women, and subjected her to bullying and required her to perform lower status and, in some cases, inappropriate assignments.

10Because of these additional allegations, the issue of the applicant being permitted to amend her Application arose during the preliminary hearing. After the hearing, the parties provided additional written submissions to address the request to amend the Application.

11During the hearing, the applicant advised she is not pursuing her claims of discrimination on the basis of disability because of the arbitration decision. She is pursuing her reprisal claim and a discrimination claim based on disability, including RSD and depression, only insofar as it intersects with the other grounds of discrimination, namely race, colour, ethnic origin and sex.

Grievance Arbitrator’s decision - April 7, 2014

12The applicant grieved her termination alleging it was done without just cause and so the employer no longer would have to accommodate the applicant’s disability at work. The corporate respondent alleged it terminated the applicant because the employment relationship was irreparably breached.

13The arbitrator noted the applicant’s grievance allegations did not include that she was not accommodated in her employment, nor did the applicant ask that the arbitrator determine whether conduct in 2006 violated her Code rights. He stated the only allegation before him was whether the corporate respondent’s conduct in the events leading up to and including her termination was motivated by a desire to get rid of the applicant because of her disability. More specifically, the arbitrator noted at paragraph 168 of his award, reported as Toronto Sun v. Unifor Local 87-M, 2014 CanLII 22359 (ON LA) (the “arbitration decision”), that he considered this alleged desire to be an allegation of discriminatory conduct and therefore he also would determine the issue of whether or not the corporate respondent violated the applicant’s rights under the Code.

14After considering the corporate respondent’s duty to accommodate the applicant to the point of undue hardship, the arbitrator found the applicant had misrepresented her ability to work, which was dishonest and provided just cause to impose a serious disciplinary response.

Section 45.1

15Section 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.

16The Tribunal has held that, in determining whether to dismiss an application pursuant to s. 45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether that proceeding “appropriately dealt with the substance of the application”.

17There is no dispute the grievance arbitration was another proceeding. The question remains whether it appropriately dealt with the substance of the Application. The applicant argues it dealt only with the issue of whether the applicant was dismissed because of her RSD disability and did not deal with the issues of reprisal, depression as a disability or the intersecting grounds of discrimination.

18The applicant argues the issue determined by the arbitrator was set out at paragraph 200 of the arbitration decision as follows:

It should be noted that the allegations in this proceeding do not include any allegation by the Guild that the Grievor [the applicant] was not accommodated in her employment. Furthermore, the Guild is not asserting that I determine whether the conduct alleged by the Grievor to have occurred back in 2006 violated the Grievor’s rights. The only allegation before me is that the Employer’s conduct, in the events leading up to and including the discharge were motivated by a desire to get rid of the Grievor due to her disability.

19The applicant argues that because she did not grieve on any ground but disability and the Union did not argue other grounds, she cannot be estopped from claiming violations of her human rights because the Union chose not to put other claims forward at the grievance. She argues the key is to determine if she had a full and fair opportunity to have her human rights claims adjudicated. The applicant further argues she refers in the Application to depression that was not dealt with in the arbitration.

20The applicant submits the arbitration decision considered only whether the termination was because of her disability but ignored the grounds of race, colour, ethnic origin and sex. In the applicant’s view, each incident of discrimination flowed from the intersection of all of these grounds. She requests she be permitted to raise her disability in this Application to demonstrate how that compounded the other issues.

21The applicant also asserts the arbitration decision did not deal with her claim of reprisal.

22The respondents counter that after seven days of hearing the arbitrator dismissed the applicant’s allegations that the respondents discriminated against the applicant on the basis of disability and found she was terminated for just cause. In the respondents’ view, the applicant cannot re-litigate her disability claims given the purpose of s. 45.1 of the Code which is to ensure the finality of decision-making. They argue that any claim touching on disability should be dismissed as having been appropriately dealt with.

23They further argue the applicant’s claim that the arbitrator did not deal with her depression claims is a scandalous attempt to broaden the Application and re-litigate issues already adjudicated.

24The respondents submit the applicant could have raised other Code grounds at the arbitration, but did not, and the applicant has not alleged that the Union did not properly represent her at the arbitration. The respondents argue the applicant has tried to split her case into two, which is an abuse of process.

25The respondents query how the applicant could have litigated the arbitration without referring to the other grounds of discrimination if her rights intersect as she claims, and ask the Tribunal to reject the applicant’s attempt, in light of the arbitration decision, to continue this Application by alleging intersecting grounds of discrimination. The respondents submit that to find that the termination was because of any Code ground would violate s. 45.1.

26The respondents further submit that it is key to determine not just what issue was before the arbitrator, but also whether the applicant had the opportunity to raise other grounds, which they submit she did.

analysis and decision re: section 45.1

27The applicant had a seven day grievance arbitration hearing and the arbitrator considered whether the applicant was discriminated against on the basis of disability with respect to her termination and the events leading to that termination. The arbitrator concluded the applicant was not discriminated against on the basis of disability, but was terminated for just cause.

28The applicant raised no other grounds except disability. She provides no explanation for why the other grounds were not part of the grievance arbitration given that she asserts that the grounds intersect. While the arbitrator did not have the opportunity to consider the other Code grounds, he nonetheless made a factual determination that the applicant’s termination was not a result of discrimination on the basis of disability, but was because the applicant was dishonest with her employer.

29Both the Application and the grievance deal with the applicant’s termination. The applicant had the opportunity to raise allegations of discrimination in the grievance, and section 45.1 applies in those circumstances. See, e.g. Bhol v. Coca-Cola Refreshments Canada Co., 2014 HRTO 96 at paras. 22 and 23 (“Bhol”).

30I accept that it is not only at times appropriate, but also essential to analyze cases by considering intersecting Code grounds (see, e.g.: Correira v. York Catholic District School Board, 2011 HRTO 1733; Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 at para. 145; and Saadi v. Audmax, 2009 HRTO 1627 at para. 98), but it does not follow necessarily that tying already adjudicated claims to other Code grounds will mean that s. 45.1 will not apply.

31The applicant should not be permitted to try and restrict the Code arguments made in the grievance so she can pursue them later in this Tribunal’s proceeding. To allow the applicant to re-litigate her termination in this case would be an abuse of process and be contrary to the intent of s. 45.1 of the Code. See, e.g.: Paterno v. Salvation Army, 2011 HRTO 2298 at paras. 3, 28, 29 & 31.

32With respect to depression, the applicant’s reference to it in her Application was referred to in the context of the applicant explaining the impact of the termination on her. It does not, in my view, constitute an act of discrimination that has not been adjudicated.

33While the applicant’s reprisal claim was not before the arbitrator, the termination issue was. The applicant had the opportunity to raise other grounds for her termination, including reprisal, but did not do so. However, the fact that she did not do so does not mean she can pursue the claim in the Application. It would be unfair to allow the applicant to re-litigate an issue pertaining to her termination. See, e.g.: Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106 (“Carrier”) at paras. 16 & 17.

34The applicant’s claims of discrimination pertaining to her termination are dismissed.

35The applicant makes additional claims of discrimination which are not dismissed, and I address the timeliness of these allegations, below.

Timeliness/no reasonable prospect of success/request to amend

Timeliness

36Subsections 34(1) and (2) of the Code enable individuals to file applications to the Tribunal and set out the timeframes for doing so:

34(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.

37When considering whether the 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 ongoing 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), 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.

Request to Amend

38In considering requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent(s). See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

No reasonable prospect of success

39In Dabic v. Windsor Police Service, 2010 HRTO 1994 the Tribunal stated 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. [Emphasis added]

40See, for example, Pellerin v. Conseil Scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”). As stated in Pellerin:

An applicant who cannot prove the foundations of the claim that depends on his or her evidence as in Jagait cannot proceed with the case and this may be analysed as a lack of prima facie case and/or no reasonable prospect of success.

Parties’ submissions

41The applicant argues her allegations are within time because they constitute a series of incidents, while the respondents argue any allegations before December 31, 2011 should be dismissed. I note despite the respondents’ submission, that given the Application filing date of December 12, 2012, their reference to untimely allegations should be to those pre-dating December 12, 2011, not those pre-dating December 31, 2011.

42The applicant requests permission to amend her Application to include the incidents detailed in paragraph 8 and 9, above. The applicant submits those allegations simply particularize how the respondents subjected the applicant to discrimination and harassment. The applicant submits she should be permitted to rely on allegations made in the Application as well as in any RFOP’s or Responses to RFOP’s filed by her since she commenced the Application.

43The respondents object to the applicant’s reliance on what they characterize as an attempt, in October, 2014 almost two years after the Application was filed, to particularize allegations as set out in paragraph 9, above. The respondents argue these additional allegations are barred by s. 45.1 or are untimely. They further argue that the allegations in the March 13, 2013 RFOP [set out in paragraph 8, above] also are untimely. In addition, the respondents submit that the allegations in the March 13, 2013 RFOP sound much like disability accommodations.

44While the applicant seeks to rely on her termination as being the last incident in a series of events, the respondents object to that because in their view that incident already has been dealt with in the arbitration and therefore cannot constitute part of a series of incidents.

45The respondents further submit there is a four year gap in the allegations, which interrupts the series. The applicant denies that and points to all of the allegations made, which include those in paragraphs 5, 8 and 9, above. In addition, she submits, contrary to the respondents’ assertion, that if there is any gap of greater than one year, it is not fatal to her claims because this is not a hard and fast rule after Garrie.

46With respect to the Application having no reasonable prospect of success, the applicant again seeks to rely on all allegations made since the inception of the Application. She submits she need not demonstrate at this stage she can prove her case, but need only adduce evidence that establishes facts directly or by inference that she suffered discrimination and has done so.

47The applicant argues that if her allegations are accepted as true, they are sufficient to pass the low bar of having a reasonable prospect of success and should not be struck at this stage.

48The applicant denies this is a case of general unfairness as the respondents characterize it.

49The respondents argue that the applicant’s request to add allegations is an attempt to repair a deficient Application that lacks specificity and contains bald allegations. In the respondents’ view, even if all allegations in the Application are accepted as true, the Application must be dismissed.

50The respondents object to the applicant’s June 18, 2014 submission, filed in letter form by the applicant’s representative to reply to the respondents’ June 12, 2014 RFOP, that although the applicant has no direct evidence of discrimination on the basis of race, colour, ethnic origin and sex the Tribunal should draw an inference from the surrounding circumstances. They argue that the applicant does not elaborate on what those surrounding circumstances are, and that this is a moving target.

51The respondents submit that there are no allegations that the applicant has been treated adversely on any non-disability grounds. While she submits that being a racialized woman who was an easy target, she makes no reference to how she experienced discrimination on these grounds and pled no facts to support the allegations.

52The applicant responds that at this stage she need only show that there is a reasonable prospect of success which is not a high bar.

analysis and decision re: timeliness/no reasonable prospect of success/request to amend

53With respect to the new allegations, I have already determined that any that deal with the applicant’s termination are dismissed pursuant to s. 45.1. Therefore, the only new allegations that may be permitted are those that relate to the alleged harassment and discrimination not related to the termination of her employment.

54The applicant must establish that the allegations constitute a series of incidents, the last of which is timely. Because of my finding that the applicant’s termination was the subject of the grievance arbitration and is barred pursuant to s. 45.1 of the Code, it cannot constitute part of a series of incidents. See, e.g.: Bhol, above, at para. 30 and Carrier, above at para. 24.

55While the respondents argue the applicant makes no other timely allegations, if the applicant is permitted to amend her Application, her allegations potentially would include events post December 12, 2011 and 2012, as set out in paragraph 8b – e, above. These include that the applicant was told to answer phones more than other reporters between 2006 and 2012; any December, 2011 allegations with respect to being the only reporter trained to edit videotape in November and December, 2012 [sic – likely should be 2011 given the applicant was terminated in January, 2012]; any allegations of being asked to shoot video stand ups of other reporters in the newsroom that occurred in the period from the fall of 2011 until January, 2012 while other reporters shot video outside of the newsroom; and not being offered any free vacations between 2006 and 2012 when some reporters were offered two or three a year.

56These are supplemented by the allegations in paragraph 9, above, although these include no specific dates.

57Respecting the post December 12, 2011 and 2012 allegations in paragraph 8, even if I allow the amendments to the Application, the applicant points to no evidence that any of these allegations occurred because of the applicant’s race, colour, ethnic origin or sex. In fact, some of the allegations demonstrate the difficulty with the attempt to split the case into two between the grievance arbitration and this Application. The allegations in paragraph 8, as the respondents point out, may well be accommodations made for the applicant’s disability.

58The allegations made in paragraph 8, including the untimely allegations set out in 8(a), in my view do not meet the test of having a reasonable prospect of success given the lack of any specifics of how these relate to the Code grounds claimed. If the intent of the allegations in paragraph 9 is to supplement how the applicant was discriminated against in the events set out in paragraph 8, they not only lack specificity including any dates, but there also is no attempt to tie those allegations to the allegations made in paragraph 8.

59As I have determined that the allegations set out in paragraphs 8 and 9, above, have no reasonable prospect of success, I need not determine whether to grant the amendment to the Application.

60Finally, with respect to the allegations in paragraph 5, those in subparagraphs (a) to (e), (g) and (i) clearly are untimely, are not part of a series including at least one timely event, and no good faith explanation for the delay has been offered by the applicant.

61Those allegations in subparagraphs (f) are untimely or have no reasonable prospect of success. The only potentially timely allegation is that the applicant had to use an alternate elevator in December, 2011 because both the usual elevator and the service elevator were out of service. Even if this allegation is timely which it may not be given the Application was filed on December 12, 2012, it has no reasonable prospect of success. Having to use an alternate elevator when the others are out of service is not evidence of discrimination.

62The allegations in subparagraphs (h) and (j) are dismissed pursuant to section 45.1 of the Code as they relate to the termination of her employment, which issue was decided by the arbitrator.

Removal of some or all of the Personal Respondents and of the Corporate Respondent, Quebecor Inc. and the Addition of Quebecor Media Inc. as a Party

63Because of my findings, above, I need not determine these issues.

decision

64The Application is dismissed.