Dankevy v. Valiant Rental Properties Limited, 2015 HRTO 898

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Dankevy Applicant

-and-

Valiant Rental Properties Limited Respondent

DECISION

Adjudicator: Douglas Sanderson Date: July 7, 2015 Citation: 2015 HRTO 898 Indexed as: Dankevy v. Valiant Rental Properties Limited

APPEARANCES

Nancy Dankevy, Applicant Self-represented

Valiant Rental Properties Limited, Respondent Ian Johncox, Counsel

1This is an Application filed on April 25, 2014 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, sex (including sexual harassment), sexual solicitation or advances and reprisal. The hearing of this matter took place on May 8, 2015.

Background

2The respondent is in the business of renting storage units. The applicant testified that she began working for the respondent as a part-time clerk in March 2003 at Durham Multi-Storage at 918 Tauton Road West, in Oshawa, Ontario. The applicant was promoted to the office manager position at Airport Self-Storage at 125 Tauton Road in Oshawa, where she worked for approximately two years. In or about September 2009, the applicant accepted the respondent’s offer to return to Durham Multi-Storage as the “resident manager”. The compensation for the manager at the Durham Multi-Storage site included a rent-free apartment. The applicant commenced a medical leave of absence on or about March 4, 2014 and remained on leave at the time of the hearing.

3In the Application, the applicant alleges that the respondent did not respond adequately to workplace sexual harassment she experienced in 2008, that she and her co-workers were subject to an abusive and highly stressful work environment and that the respondent reprised against her by requiring her to pay rent while on medical leave.

4The respondent’s position, set out in the Response, was that the applicant’s allegation regarding sexual harassment were dealt with appropriately at the time, but, in any event, were statute barred, pursuant to the limitation period set out in section 34(1) of the Code. In the Response, the respondent also states that the applicant made serious allegations against the respondent’s management personnel and demanded a “settlement”, failing which she would contact the Human Rights Tribunal. The respondent states that the applicant refused to provide any details regarding her allegations and did not cooperate with the respondent’s attempts to investigate her complaints. The respondent states that the applicant’s allegations regarding the management of the respondent were also not related to any Code ground. The respondent states that the applicant’s rent is part of her compensation and therefore she is required to pay rent when she is not working. The respondent states that it has exercised discretion to pay the rent of sick employees, but that this is the exception to the rule. The respondent states that the applicant’s behaviour did not warrant the exercise of this discretion when she went on medical leave in March 2014.

harassment allegations dismissed for delay

5The applicant testified that she was sexually harassed by a co-worker when she worked at Airport Self-Storage. The applicant testified that she complained to Head Office regarding this harassment. The respondent addressed the situation by prohibiting the co-worker from coming into the office while the applicant was at work, which she considered to be inadequate.

6As noted above, the applicant left the Airport Self-Storage location in or about September 2009. Consequently, the alleged harassment that she experienced and the respondent's disciplinary response occurred well over three years before she filed this Application.

7I asked the applicant why she did not file an application with the Tribunal at the time of these incidents. She responded that she knew she would be changing locations and decided not to raise the issue in order to avoid controversy and trouble with the respondent. The applicant stated that the alleged harasser began working at the Durham Multi-Storage location in 2013. The applicant stated that she found this stressful, but acknowledged that there had been no further incidents of inappropriate behaviour.

8The respondent submitted that the Tribunal should dismiss the applicant's harassment related allegations for delay. The respondent submitted that there had been no incidents of harassment after those she experienced at Airport Self-Storage; therefore, there was no continuity of events. The respondent also submitted that the applicant had provided no good faith explanation for the delay in raising these allegations with the Tribunal.

9I dismissed the applicant's harassment related allegations for delay and undertook to include my reasons in this decision, which are as follows.

Analysis and decision

10Section 34(1) and (2) state 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.

11The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621. Similarly, incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1) (b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See Chintaman v. Toronto District School Board, 2009 HRTO 1225, and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12The Code requires an applicant to act with due diligence in pursuing a human rights claim by filing an application within a year. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for filing outside of the one year time limit in order to establish that any delay was incurred in good faith. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

13The applicant chose not to pursue her harassment-related allegations with the Tribunal because she knew she would not be working with the alleged harasser after she changed workplaces. The applicant also wished to avoid any controversy with her employer, the respondent. Although the applicant was not entirely satisfied with the respondent's reaction to her harassment complaint, her evidence indicates that she considered the matter to be over. In my view, these reasons do not amount to a good faith explanation and it is not open to her to revive this issue in conjunction with her other allegations. There is no evidence that the applicant experienced any sexual harassment after she returned to Durham Multi-Storage in 2009. The incidents of discrimination alleged to have occurred within one year of the Application filing date were not connected to her allegations of sexual harassment and were not based on the same Code grounds. Moreover, the allegations related to sexual harassment were separated by several years from the timely allegations. In these circumstances, I find that there was no series of incidents for the purposes of section 34(1) (b). The applicant’s allegations of harassment and of an inadequate response from the respondent are dismissed for delay.

Allegations regarding work environment

14The applicant testified that the smell coming from the septic tank at Durham Multi-Storage has been an issue for over five years. The applicant stated that she made management aware of the issue, but little was done until she called "health and safety" to check the air quality in the workplace. The applicant's evidence was that "health and safety" was booked in to visit the workplace, but the respondent had the septic tank cleaned before their arrival. The applicant stated that she considered this to be a "cover-up". I asked the applicant how this issue is related to her rights under the Code. The applicant stated that she assumed that it was related to human rights.

15The applicant testified that on Friday, February 28, 2014, she sent an e-mail message to the Property Manager, Darren Shaw, to inform him that she was not feeling well and to ask him to find coverage for her for the following Monday. In fact, the tendered e-mail messages between the applicant and Mr. Shaw were all sent in the evening of Sunday, March 2, 2014, but nothing turns on this. The messages indicated that Mr. Shaw informed the applicant that it was up to her to find coverage for herself and directed her to advise him who she arranged to cover for her by 9 p.m. The applicant stated that Mr. Shaw also called her by telephone to repeat this instruction. The applicant sent an e-mail message at 9:45 p.m. to the effect that she had been unable to find coverage and was going to the hospital. The applicant's evidence was that she decided to send an e-mail message to Dionne Kukoly in human resources, in which she stated that she felt it was unfair that she had to get her own coverage when she was ill enough to go to the hospital. Shortly afterward, she received an e-mail message from Mr. Shaw stating that he had found coverage for her.

16The applicant's evidence was that the respondent set an onerous pace of work for all of its employees and several people were dismissed from their employment. The applicant stated she was unable to express an opinion and that the company had become a "dictatorship" after new managers were put in charge of facilities in or around 2011 or 2012. The applicant stated she was the subject of unfair criticism and was in constant fear of losing her job.

17The applicant testified that she was off of work for six weeks in 2012 following surgery. The applicant's evidence was that she was not charged for benefits or rent during the absence. The applicant stated that she was charged for rent when she began her medical leave in March 2013.

18Reference was made to as series of e-mail messages between the applicant and respondent's counsel. The first message referred to was dated March 26, 2013. In that message, the applicant stated that she had no problem with paying rent, but noted that she had not been required to pay rent following her absence of six weeks in 2012 following surgery and that another site manager had not been required to pay rent while on sick leave. The applicant expressed her hope that the requirement to pay rent was not "discrimination" because she had contacted the Human Rights Tribunal. In a reply e-mail message of the same date, respondent’s counsel reminded the applicant that her rent was part of her compensation and that the respondent does not have sick benefits. As a result, the applicant was required to pay rent when she was not working. In that message, counsel also expressed the respondent’s view that the applicant’s allegations of unfair treatment did not amount to violations of the applicant’s Code rights.

19In an e-mail message dated March 31, 2013, respondent’s counsel explained that the respondent had made exceptions to the requirement to pay rent when not working. Counsel explained that the respondent made exceptions as “acts of kindness” on the discretion of management. Counsel noted that the applicant had made serious allegations against the respondent’s managerial personnel, but had refused to cooperate with the respondent’s attempts to investigate these allegations. Counsel stated the respondent’s position that her behaviour was grounds for discipline and was not conducive to extending discretionary payments to her (in the form of free rent when she was absent from work).

20The applicant agreed that she stated that she had "no problem paying rent" in an e-mail message to the respondent's counsel dated March 31, 2013, in response to his message of the same date, described above. She noted, however, that she also stated in the message that she had been unaware that it was not standard policy to continue to pay employees while absent due to illness. The applicant also noted that she expressed her concern that she was being punished by being required to pay rent because she expressed her opinions regarding the respondent.

21Following the applicant's evidence in chief, I ruled that the applicant's evidence disclosed no connection to any Code grounds and her allegations had no reasonable prospect of success, with the possible exception of the requirement to pay rent during her medical leave of absence starting in March 2013. The reasons for this ruling are set out below. Consequently, I directed the respondent to limit the scope of its cross-examination and evidence to the issue of requiring the applicant to pay rent during her leave of absence.

22In cross-examination, the respondent reviewed the nature of the applicant's complaints against the respondent. For example, respondent's counsel put to the applicant an e-mail the applicant sent to Erika Bradbury, the respondent's V.P. of Operations, on March 3, 2014. In that message, the applicant complained of emotional stress caused by the respondent's management style. She also expressed fear for her job security, having observed that many employees were dismissed for "not abiding the dictatorship of this company". The applicant stated that she would like to receive full pay for the duration of her medical leave. The applicant went on to say that she would be "satisfied with that compensation" and would "not take any further action" if that demand was fulfilled. The applicant acknowledged that the respondent does not provide sick pay benefits and that she remained on medical leave as of the time of the hearing. The applicant explained that she never expected to be absent for so long.

23The applicant confirmed that she had complained that the respondent's managers were "dictators", used "brutal tactics" and were guilty of favouritism and inhumane treatment of employees. The applicant agreed that she demanded that Ms. Bradbury be retrained and that she suggested that another employee required treatment for alcohol abuse. The applicant agreed that she had complained of the respondent's treatment of other employees and with respect to the reporting relationship of certain employees. The applicant agreed that she felt the respondent acted unfairly and was "out to get" her.

24The applicant agreed that her rent was part of her compensation and was a taxable benefit. She did not agree that making disparaging comments about her employer should affect whether the respondent exercised its discretion to continue her rent free status while on sick leave.

25The applicant agreed with the respondent's counsel that the reason the respondent did not pay her during her absence was that she made several serious allegations against the respondent, but refused to divulge the details of those allegations. The applicant stated, however, that she should not be punished for expressing an opinion.

26Following the conclusion of the applicant's evidence, the respondent requested dismissal of the Application because the applicant's evidence did not disclose a prima facie case of discrimination. The applicant opposed that request, but did not make further submissions. I advised the parties I would reserve my decision regarding the respondent's request and would provide my decision in writing. For the reasons that follow, the Application is dismissed.

Analysis and decision

27The relevant provisions of the Code are:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. 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.

No Reasonable Prospect of Success

28The respondent requested dismissal of the Application after the applicant testified on the basis that her evidence did not establish a prima facie case of discrimination. In terms of Tribunal procedure, this amounts to a request to determine whether the Application has a reasonable prospect of success, following hearing some, but not all, of the proposed evidence, as discussed in the Tribunal's decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777

29“No reasonable prospect of success” is the test the Tribunal applies in summary hearings, under Rule 19A.1 of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding how the Tribunal assess whether there is no reasonable prospect of success at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

30The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

31In Pellerin, above, the Tribunal ruled that a hearing should not continue when it becomes clear, after hearing some but not all proposed evidence, that the applicant has no reasonable prospect of proving his or her case. Here, the issue with respect to the applicant’s allegations, not related to the requirement to pay rent, is whether they disclose the necessary link between the respondent’s actions and any prohibited grounds.

32In this case, the applicant gave evidence describing examples of the respondent's conduct to which she objected. She complained of harsh treatment of herself and of others, fear for her job security, intolerance of dissenting opinions and health and safety concerns related to the smell from the septic tank. Assuming these allegations are true, it may be that the applicant was subjected to unfair treatment in her employment with the respondent. As noted above, however, the fact that the respondent may have acted unfairly does not necessarily mean that the respondent's actions amounted to violations of the Code. To establish discrimination, the applicant was required to give evidence that the respondent' actions were connected to or caused by, at least in part, the prohibited grounds of discrimination on which she relied. There was no such evidence regarding allegations of harsh management practices, intolerance of dissent or health and safety issues. Consequently, these allegations had no reasonable prospect of success and in these circumstances it was not appropriate to require the respondent to address them. These allegations are dismissed.

Rental Issue / Reprisal

33The prohibition against reprisal is particularly important because it protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant 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.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

34In her evidence in chief, the applicant testified that the respondent refused to continue her rent free status at the same time that she was advancing what she considered to be human rights complaints against the respondent. There is no dispute that the applicant threatened to go to "Human Rights" with her complaints unless the respondent satisfied her demands for a settlement. Accordingly, there appeared to be some evidence that could support the applicant's allegation of reprisal.

35In de Pelham v. Ricoh Canada, 2009 HRTO 813, the Tribunal found that the Code’s anti-reprisal protections extended to the applicant because he had a “sincere, and not unreasonable, belief that he was covered by the Code”. In that case, however, the applicant’s claim was based on an interpretation of the ground of “record of offences”. The Tribunal rejected that interpretation in de Pelham v. Mytrak Health Systems, 2009 HRTO 172, but until that ruling the applicant had a reasonable belief that his claim came within the Tribunal’s jurisdiction. In this case, the cross-examination of the applicant clarified that the applicant's complaints against the respondent were the same allegations of unfair treatment not related to Code grounds that I dismissed during the hearing. The applicant clearly assumed that these matters were caught by the Code, but provided no explanation that would permit me to conclude that this assumption was reasonable. In fact, the respondent put the applicant on notice that it did not consider her complaints to be related to the Code. For the reasons described above, these allegations cannot amount to Code violations. Consequently, the applicant was not claiming her human rights and therefore any action the respondent may have taken in response to these allegations do not meet the criteria for establishing reprisal under section 8 of the Code. I note that the applicant filed this Application on April 25, 2014, well after the alleged acts of reprisal. In these circumstances, the allegations of reprisal have no reasonable prospect of success.

36The Application is dismissed.