Darroch v. Lakeshore (Town), 2015 HRTO 919

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kim Darroch

Applicant

-and-

Town of Lakeshore, Kirk Foran and Morris Harding

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 13, 2015

Citation: 2015 HRTO 919

Indexed as: Darroch v. Lakeshore (Town)

APPEARANCES

Kim Darroch, Applicant

Paul Nesseth, Counsel

Town of Lakeshore, Daniel Piescic, Lee Holling, Steven Salmons, Tony DiCiocco, Kirk Foran, Tom Touralias and Morris Harding, Respondents

Margaret Szilassy, Counsel

Introduction

1This Application was filed on May 29, 2014, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination and harassment in employment on the basis of sex, sexual solicitation or advances and reprisal.

2In addition to the organizational respondent, Town of Lakeshore (the “Town”), the applicant named the following as individual respondents: Daniel Piescic, Lee Holling, Steven Salmons, Tony DiCiocco, Kirk Foran, Tom Touralias and Morris Harding.

3This Decision follows a summary hearing addressing whether the Application should be dismissed, in whole or in part, on the basis that it has no reasonable prospect of success, or on the basis of delay. A request by the respondents that the individual respondents be removed as parties to the Application was also addressed at the summary hearing.

The Parties

4The applicant was hired by the Town as its Manager of Development Services in the summer of 2008. Her title was later changed to Manager of Planning. The applicant reported to the Town’s Director of Community and Development Services (“CDS”), who was Mr. Holling, until January 19, 2012. In April 2012, Mr. Salmons became the Director of CDS.

5Mr. Piescic was the Town’s Director of Engineering and Infrastructure Services (“EIS”) until June 11, 2010, after which Mr. Touralias, who had been the Town’s Waterworks Engineer, became the Director of EIS. Mr. DiCiocco is the Manager of Engineering Services.

6Mr. Harding became the Town’s Chief Building Official in 2009, and Mr. Foran, who had been the Town’s Director of Corporate Services, became the Chief Administrative Officer (“CAO”) in July 2011.

The Applicant’s Allegations

7The applicant’s allegations are set out in a 20-page narrative attached to the Application as “Schedule ‘A’”. The narrative includes the following allegations:

a. The applicant’s first encounter with discriminatory comments by Town employees occurred at a meeting in March 2010, when Mr. Piescic said that “he just got a haircut and he doesn’t care if anyone else likes it, only Kim and that Kim is our blonde in our office”;

b. At a meeting on or about June 10, 2010, Mr. Piescic said in front of the applicant and others, that “he was going to have a little fun with this one”, directing his comment at the applicant. The applicant then heard a big bang and Mr. Piescic said “did you hear that? It must be a sign that we are made for one another”. Mr. Piescic then asked the applicant “if [she] still [gets her] period, because he likes fertile women” and Mr. DiCiocco asked Mr. Piescic “if he could have some fun too, because he gets stressed in here too”. Mr. Piescic said “no” to Mr. DiCiocco and “you are married and Kim and I are single”. Mr. DiCiocco then said “oh, come on Dan”. The applicant was in complete disbelief and shock, then Mr. Piescic said to Mr. DiCiocco “look at her, I have control of her”;

c. Immediately after the June 10, 2010 meeting, Mr. DiCiocco and Mr. Touralias spread disturbing stories and malicious rumours about the applicant, suggesting she had a relationship with Mr. Piescic. Mr. Piescic continued to make inappropriate comments and unwanted gestures, smiling and winking at her;

d. On or about June 10, 2010, the applicant started getting inappropriate comments of a sexual nature from Mr. Harding and Mr. Holling. Mr. Harding came up close to the applicant in the photocopy room, made an inappropriate gesture, and asked her “if [she] was getting excited?” The same day as she was leaving work, Mr. Harding was in the parking lot and said, among other things, that “he wanted to sleep with [her]… ”. She ignored him. On another occasion in 2010, Mr. Harding was trying to look down her top;

e. Around June 10, 2010, Mr. Holling told the applicant at one of their weekly manager meetings, among other things, that “he hired [her] because [she] was single and that he thought he could have sex with [her]… ”, and “we will have our own secret ‘code’ between us when I want to have sex with you.” She ignored his comments. His behaviour did not stop until he left the employ of the Town in January 2012;

f. On December 2 and 3, 2010, Mr. Touralias verbally attacked the applicant at a seminar, making very sarcastic comments about the way he thought she should or should not discipline her staff. He also made inappropriate and rude facial gestures at her in the parking lot. At a meeting on December 9, 2010, Mr. Touralias questioned the applicant’s job title, aggressively trying to get her to use Manager of Planning instead of Manager of Development Services;

g. At a meeting on March 21, 2011, Mr. Touralias made derogatory comments about Planners. At a meeting on August 3, 2011, Mr. Touralias was really aggressive and rude to the applicant. At a meeting on September 9, 2011, Mr. Touralias cut the applicant off while she was speaking. He also sent sarcastic comments to the applicant and others about the meeting minutes, which were prepared by a Planning Clerk. At a meeting on November 3, 2011, chaired by the applicant, Mr. Touralias was again sarcastic towards the applicant, disrespected her position as a Planner and chair of the meeting, and engaged in argumentative behaviour. At a meeting on December 2, 2011, Mr. Touralias asked the applicant “who was smarter, Engineers or Planners?”;

h. At a meeting on December 6, 2011, the applicant spoke to Mr. Holling and Mr. Foran about the problems that she and the Planning Coordinator were having with Engineering, namely Mr. Touralias and Mr. DiCiocco, and their sarcastic attitude towards her as a Planner as well as, the difficulty they were having trying to work together with them. Mr. Holling and Mr. Foran said that they understood the problem and would look into the matter, but she never heard back. Shortly after the meeting, a Clerk noted to the applicant that “they treated the two previous Planners the same way”;

i. In January 2012, a job ad was posted for Mr. Holling’s position. The applicant did not apply as Mr. Harding and another co-worker let her know that “there was no way [she was] going up there as Director”, unless she started talking to them;

j. On June 21, 2012, the applicant met with her new supervisor, Mr. Salmons, about an email he sent her that she thought was inappropriate. He stood up from his chair, looked her in the eyes like he was trying to intimidate her, and accused her of “insubordination and not following his orders”. The applicant made a complaint to Mr. Foran and the Manager of Human Resources, Carol Nussey, by email;

k. On October 3, 2012, Mr. Salmons said that Mr. Touralias was offended by an email the applicant sent him, and that she needed to be more careful with email. It made no sense to her. On October 11, 2012, Mr. Salmons came into the applicant’s office and told her that Mr. Touralias was upset with her because she does not see him as a Director;

l. In January or February 2013, Mr. Foran came into the applicant’s office, and they were talking about day to day matters, when Mr. Foran casually said “you are just a little girl”, which was odd and demeaning;

m. In August 2013, Mr. Foran made various comments outside the applicant’s door, saying that “he wanted to start the process to get rid of Kim if she did not start talking more to them… that [she works] on [her] own and [she does not] need their help in here…”;

n. At a meeting on September 17, 2013, Mr. Touralias stated “out of the blue”, and for no apparent reason, “I hate Planners”. At a meeting before the Christmas break in 2013, Mr. DiCiocco strongly disagreed with the applicant and the Town’s solicitor and made off putting comments about the applicant’s opinion on a matter;

o. On January 24, 2014, there was a meeting regarding a lawsuit, and Mr. Salmons asked the applicant to leave the meeting because “[she has] professional ethics and it might be better if [she] wasn’t present”. The applicant took offence to the comment since it appeared that he held a bias against professional Planners. Mr. Touralias, who was sitting on her side of the table, moved over to the other side where Mr. Salmons was and said “he felt the weight shifting to the other side of the table Kim, and was going to sit there. At [that] point, [she] thought ‘is this ever going to end?’”;

p. On January 24, 2014, the applicant questioned Mr. Salmons about his comment that the Planning Department was creating a “silo culture”. He leaned over his desk, looked the applicant straight in the eyes, and said he “talked to someone from the City of Hamilton and he said if you don’t have someone who can integrate with other departments, then the organization cannot function”. She was visibly upset by his comments;

q. At a meeting on February 4, 2014, Mr. DiCiocco gave the applicant a “dirty” look and said “Hi… Kim…” in a not-so-nice way. Mr. Foran introduced the applicant’s supervisor as the head of Planning. The applicant thought she was the head of Planning and she was a bit offended by the comment;

r. At a meeting on February 5, 2014, Mr. Foran told the applicant that Engineering was telling him things like this “silo culture behaviour” exists, and Planning is telling him the opposite. The applicant told Mr. Foran that they could not possibly do their job in Planning working in a silo culture. Mr. Foran said that she would have to take that up with her supervisor and he did not want to listen to her side of things. The applicant became very upset and finally accused him and others of harassment and sexual harassment over the years. Mr. Foran let her know there was a policy for that and that he would look into that if she wanted him to. Mr. Foran then asked her if she was just going to “quit the organization”. She told him she was going home. After the meeting, the Planning Coordinator saw that she was visibly distraught and crying in her office. The Planning Coordinator told her that they treated the other two Planners before her the same way, and they moved on;

s. The applicant left on a stress leave on February 6, 2014. She returned to the office on February 12, 2014, to get some papers, and Mr. DiCiocco said to the applicant, in a sarcastic tone, maybe “[he] should go on stress leave”;

t. At a meeting on April 2, 2014, Mr. Harding stretched, put his arm around the applicant, laughed, and then quickly removed his arm as she gave him an upset look;

u. At a meeting on April 14, 2014, Mr. DiCiocco was very angry and would not listen to the applicant or the Planning Coordinator. Mr. DiCiocco stormed out of the meeting stating that “he was done talking to [them]”;

v. Notwithstanding the complaints the applicant made to Mr. Foran on December 6, 2011 and June 21, 2012, and a meeting with Mr. Foran on February 5, 2014, the Town took no steps to correct the behaviour of the offending employees; and,

w. The atmosphere that pervaded the workplace was negative, misogynistic, male-dominated, and denigrating to women. The male managers perpetuated the “old boys club”. The applicant was harassed in the workplace by her male co-workers and suffered gender-based discrimination, which was ignored by senior management.

The Respondents’ Position

8In their Response to the Application, the respondents deny all the allegations relating to sexual solicitation and harassment, including the three separate incidents alleged to have occurred on or about June 10, 2010, involving Mr. Piescic, Mr. Harding and Mr. Holling, and the further unparticularized claim that Mr. Holling’s behaviour did not stop until January 2012. The respondents also submit that these allegations have been brought beyond the one year limitation period in the Code.

9More particularly, Mr. Piescic also denies referring to the applicant as “our blonde in our office” in March 2010, as alleged. The respondents also deny that either Mr. Piescic or Mr. DiCiocco made the comments the applicant attributes to them at a meeting on June 10, 2010. They submit that three other women were in attendance at the meeting, including the then CAO, and it is not credible that the other women, in particular the CAO, would not have stepped in to object to such offensive comments. They also submit that Mr. Piescic concluded his employment with the Town the following day and he did not have any communication with the applicant after June 10, 2010. They also submit that Mr. Touralias was not in attendance at the meeting, that it never crossed his mind that the applicant and Mr. Piescic could be in a relationship, and he denies ever discussing that possibility with anyone, including Mr. DiCiocco.

10The respondents submit that the allegations relating to sexual harassment and solicitation are wholly separate and unconnected to the events set out in the Application that arose subsequent to the departures of Mr. Piescic and Mr. Holling. They submit that the remaining allegations in the Application, which are denied, relate to alleged disrespect by the applicant’s co-workers of her specialization as a Planner, and not to the prohibited ground of discrimination on the basis of sex, as alleged.

11The respondents filed a Request for an Order During Proceedings (“RFOP”). In the RFOP, the respondents seek dismissal of the allegations that the applicant was subjected to sexual harassment and solicitation by the individual respondents, Mr. Piescic, Mr. Harding, Mr. Holling and Mr. DiCiocco, between March 2010 and January 2012, on the basis of delay. The respondents also request that the Tribunal exercise its discretion, under Rule 1.7(b) of the Tribunal’s Rules of Procedure, to remove the individual respondents, Mr. Foran, Mr. Salmons, Mr. Touralias, Mr. Harding and Mr. DiCiocco, from the Application.

12The respondents also filed a Request for Summary Hearing with respect to the applicant’s allegations that she suffered discrimination on the basis of gender as a result of various workplace interactions with the individual respondents, Mr. Foran, Mr. Touralias, Mr. Salmons, Mr. Harding and Mr. DiCiocco, between January 2012 and April 2014. The respondents submit that these allegations have no reasonable prospect of success, and should be dismissed.

SUMMARY HEARING

13Rule 19A.1 of the Tribunal’s Rules of Procedure, states 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.

14In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 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.

15In a Case Assessment Direction (“CAD”) dated September 19, 2014, the Tribunal granted the respondents’ Request for Summary Hearing. The Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that the Application has no reasonable prospect of success, or on the basis of delay. The Tribunal’s CAD directed the applicant to make argument about why the Application should not be dismissed on the basis of delay, or as having no reasonable prospect of success, and to point to the evidence on which the applicant would establish a link to the respondents’ alleged actions. The Tribunal also indicated that the parties should be prepared to address the respondents’ request, in their RFOP, that individual respondents be removed from the Application.

Delay

16Section 34 of the Code provides as follows:

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.

17The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

18In their RFOP, the respondents submit that the applicant describes several incidents of sexual harassment and solicitation occurring between March and June 2010. In addition, the applicant makes unparticularized complaints that Mr. Piescic and Mr. Holling continued in their behaviour beyond June 2010, until their employment with the Town came to an end. The respondents submit that the applicant first brought forward her complaints of sexual harassment and solicitation to Mr. Foran on February 5, 2014, but when asked by Mr. Foran and Ms. Nussey if she wished to make a complaint so the Town could investigate, she declined to do so.

19The respondents also submit that the applicant’s allegations arising between January 2012 and April 2014 all relate to workplace differences between the applicant and her various co-workers, and that these remaining allegations are not connected to any prohibited ground under the Code. They submit that the allegations relating to sexual harassment and solicitation are wholly separate and unconnected to the allegations relating to workplace differences and the applicant’s perception that she was not respected in the workplace. They submit that the applicant cannot rely on the workplace differences to bring the allegations of sexual harassment and solicitation within the limitation period in the Code.

20In a Response to the respondents’ RFOP, the applicant argues that the allegations in the Application constitute a “series of incidents” within the meaning of s. 34(1)(b) of the Code.

21In considering the meaning of the term “series of incidents” in s. 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457 at para. 25. As noted in Savage v. Toronto Transit Commission, 2010 HRTO 1360, a gap of more than one year between incidents in a series would, in most cases, interrupt the series.

22The Tribunal has also held that whether and to what extent an application alleges a “series of incidents” very much depends upon the specific facts of each case and the nature of the incidents which are alleged to form part of the series: See Henry v. Waterloo Catholic District School Board, 2010 HRTO 1715, at para. 8. In determining whether a number of incidents constitute a series for the purposes of s. 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues: See Thambipillai v. Toronto District School Board, 2011 HRTO 487.

23In the present case, the applicant alleges that she was subjected to sexual harassment by Mr. Piescic in March 2010, and sexual harassment, solicitations and advances by Mr. Piescic, Mr. DiCiocco, Mr. Harding and Mr. Holling, on or about June 10, 2010. While the applicant alleges that Mr. Piescic continued to make inappropriate comments, it appears undisputed that he concluded his employment with the Town on June 11, 2010. The applicant filed the Application with the Tribunal on May 29, 2014, nearly four years later.

24With respect to Mr. Harding, in addition to the June 2010 allegations, the applicant also alleges that he tried to look down her top on another occasion in 2010. There do not appear to be any other allegations of a similar nature concerning Mr. Harding until the allegation that he put his arm around her on April 2, 2014, nearly four years after the June 2010 allegations. There is an allegation that, in January 2012, Mr. Harding made a negative comment to the applicant in relation to her possibly applying for Mr. Holling’s position, more than a year after the 2010 allegations concerning Mr. Harding.

25With respect to Mr. Holling, after setting out the June 2010 allegations, the applicant alleges that his behaviour did not stop until he left the employ of the Town in January 2012. The applicant did not particularize any further behaviour of a similar nature by Mr. Holling in either her materials or her submissions at the summary hearing. In any event, the Application was filed more than two years and four months after Mr. Holling retired.

26The applicant alleges that, immediately after the June 10, 2010 meeting, Mr. DiCiocco and Mr. Touralias started spreading disturbing stories and malicious rumours about her, suggesting that she had a relationship with Mr. Piescic and this behaviour went on for “some time”. No further particulars have been provided. Subsequent allegations in the Application involving Mr. Touralias commence in December 2010 and continue throughout 2011. These subsequent allegations appear to be of a different nature, and concern Mr. Touralias making sarcastic comments to the applicant and disrespecting her position as a Planner.

27There are no further allegations concerning Mr. DiCiocco detailed in the Application until the allegation that he strongly disagreed with the applicant and made off putting comments about her opinion on a matter at a meeting before the Christmas break in 2013. The applicant does allege, however, that she spoke to Mr. Foran and Mr. Holling on December 6, 2011, and emailed them about the problems she and the Planning Coordinator were having with Engineering, namely Mr. Touralias and Mr. DiCiocco. She refers to their sarcastic attitude towards her as a Planner and the difficulty they were having trying to work with them. In the Application, the applicant explains that she did not mention that she had been sexually harassed and that she instead referred to the men in Engineering who were giving her “a hard time”.

28The allegations of sexual harassment, solicitations and advances made by the applicant primarily concern events alleged to have occurred on or about June 10, 2010, approximately four years before the Application was filed. While the applicant alleges that Mr. DiCiocco and Mr. Touralias spread stories and rumours for some time after June 10, 2010, and that Mr. Holling’s behaviour did not stop until he left the employ of the Town in January 2012, the applicant has not provided any particulars of such allegations that could establish a series of incidents going beyond June 2010. Also, the Application was not filed until more than two years and four months after January 2012.

29I find that the above allegations of sexual harassment, solicitations and advances do not form a series of incidents with the remaining allegations in the Application that commence in December 2010, and concern allegedly negative treatment of the applicant in her position of Planner because of sex. In my view, the serious sexual harassment, solicitations and advances that he applicant alleges she was subjected to in three separate incidents, all occurring on or about June 10, 2012, do not form “a pattern of conduct” with the remaining allegations in the Application that the applicant was treated negatively in her position as a Planner by various co-workers.

30I note that, in arguing that the allegations in the Application constitute a series of incidents at the summary hearing, the applicant submitted that the original egregious sexual harassment of men such as Mr. Piescic, Mr. Harding and Mr. Holling was obvious and other men in the workplace picked up on it. The applicant submitted that the denigrating comments that came after were less egregious, but their attitude was degrading towards the applicant as a woman. Having carefully reviewed the allegations in the Application, I have some difficulty with this assertion. With respect to Mr. Harding and Mr. Holling, there is no indication that anyone other than the applicant was present when the alleged incidents took place in 2010 and they are not alleged to have engaged in such harassment in front of others. Also, while Mr. Piescic is alleged to have made inappropriate comments at two meetings in 2010, the subsequent allegations of sarcastic comments and negative behaviour towards the applicant as a Planner particularized in the Application that commence in December 2010, and continue through to December 2011, only involve Mr. Touralias. I note that the respondents submit, and it appears undisputed, that Mr. Touralias was not present at the June 10, 2010 meeting when Mr. Piescic is alleged to have made very inappropriate comments. There is no indication as to whether Mr. Touralias was present at a meeting in March 2010 when Mr. Piescic is alleged to have referred to the applicant as their “blonde” in the office.

31In my view, the only timely allegation that could reasonably be considered to be in the same class as the allegations of sexual harassment, solicitations and advances is the allegation that Mr. Harding put his arm around the applicant at a meeting on April 2, 2014, long after the 2010 allegations concerning Mr. Harding and more than two years and two months after Mr. Holling retired. In light of the considerable passage of time between these allegations, I find that the allegations of sexual harassment, solicitations and advances concerning the time period of March 2010 to January 19, 2012, and primarily on or about June 10, 2010, do not form a “series of incidents” with any timely allegations of the same class. I find, therefore, that the allegations of sexual harassment, solicitations and advances concerning the March 2010 to January 19, 2012 time period, and involving Mr. Piescic, Mr. Harding, Mr. Holling and Mr. DiCiocco, as well as, the bald allegation that Mr. DiCiocco and Mr. Touralias spread stories and rumours after the June 10, 2010 meeting, were not filed within the one year time limit under the Code.

Good Faith

32In order to satisfy the Tribunal that delay was incurred in good faith, applicants must provide a reasonable explanation regarding why they did not pursue their Code rights in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2) of the Code. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

33In the Application, the applicant alleges that she suffered from stress, anxiety, sleep loss, weight loss and depression as a result of the unwanted actions by her co-workers. In her Response to the respondents’ RFOP, the applicant submits that she believes the psychological effects of the harassment and discriminatory behaviours she experienced in the workplace led to her delay in filing the Application. She attached a medical note that she provided to the Town to be off work, dated February 10, 2014

34The applicant also filed a report from a social worker, dated November 17, 2014, for the purposes of the summary hearing. The report states that some of the factors which influenced the applicant’s delay in filing a complaint include that: (1) the applicant was not familiar with the Town’s internal procedure for filing harassment complaints; (2) the alleged harassers were the applicant’s direct supervisors, senior management did not seem to mind the workplace culture in the office, and the applicant worried that her complaints would not be taken seriously, or that she would be seen as troublemaker; (3) several times the applicant complained to her supervisor and CAO about some of the difficulties she was experiencing with her male colleagues, but because the applicant felt her employer did nothing to prevent or address the discrimination and harassment she had complained about, she felt that if she complained about the sexual harassment, they would not address that either; (4) she was fearful that the complaint would be branded false or frivolous; (5) she worried that filing a complaint would jeopardize her career; and (6) fear of reprisal for herself, and that co-workers called upon to be witnesses would experience fear of reprisal.

35In my view, the applicant’s submissions, including the medical information, do not establish that the applicant would not have been able to file an Application with the Tribunal prior to February 2014 for medical reasons. Also, the information provided, to a large extent, addresses the applicant’s reluctance to file an internal harassment complaint with the Town, and not an Application with the Tribunal.

36I am also not satisfied that the applicant’s submitted fear of reprisal establishes a good faith explanation for the delay in filing the Application with the Tribunal. I note that while the applicant explains in the Application that she did not complain about sexual harassment to the respondents until she complained to Mr. Foran on February 5, 2014, she did raise other complaints in the workplace. For example, the applicant alleges that, on December 6, 2011, she complained to Mr. Foran and Mr. Holling about Mr. Touralias’s and Mr. DiCiocco’s sarcastic attitude towards her as a Planner, and the difficulty she was having trying to work together with them. She both spoke to Mr. Foran and Mr. Holling at a meeting, and sent them an email. She also alleges that, on July 10, 2012, she complained to Mr. Foran and Ms. Nussey about an email she received from her new supervisor, Mr. Salmons, and his behaviour towards her. She also alleges that, on February 5, 2014, she sent an email to Mr. Foran, Ms. Nussey and the Town’s Mayor about a comment Mr. Salmons made in her performance appraisal that she did not agree with, and some other problems that she was having with him. In my view, the applicant has not adequately explained why she was able to raise these concerns in the workplace, but did not file a timely Application with the Tribunal in relation to the allegations of sexual harassment concerning the March 2010 to January 19, 2012 time period.

37In any event, the Code contains express provisions regarding reprisal and threat of reprisal. It is not clear to me that fear of reprisal could, generally, constitute a good faith basis for delay. See N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282 at para. 22.

38I find that he applicant has not established a good faith explanation for the delay in filing the Application with respect to the allegations that are untimely. In the circumstances, I need not consider the issue of prejudice.

39The allegations that the applicant was subjected to sexual harassment, solicitations and advances by the individual respondents, Mr. Piescic, Mr. Harding, Mr. Holling and Mr. DiCiocco, between March 2010 and January 2012, as well as, the allegations that Mr. DiCiocco and Mr. Touralias spread stories and rumours after a June 10, 2010 meeting, are dismissed on the basis of delay.

Reasonable Prospect of Success

40In their Response to the Application, the respondents submit that the Town’s Planning department works in conjunction with the Engineering and Building departments on many initiatives. They submit that, on occasion, the perspectives of Planning, Engineering and Building are not aligned, and, in these instances, the applicant and employees from the Engineering and Building departments are required to formulate the Town’s unified position, and arrive at a consensus.

41The respondents also submit that, during discussions between the Planning, Engineering and Building departments, at times, employees engage in lighthearted bantering regarding the supremacy of their respective professions. They submit that all three departments participate in this bantering and it has never been targeted at one individual or gender.

42The respondents deny that any of the allegations made against the individual respondents in respect of their workplace interactions relate to a protected ground under the Code and submit that the applicant has failed to disclose how any workplace challenges or disputes between her and her co-workers relates, in any way, to a protected ground. In particular, they submit that the Application alleges that the two previous male Planners experienced the same challenges to their opinions, and teasing about their profession, that the applicant has described in detail in her Application.

43In their Request for Summary Hearing, the respondents submit that the allegations of discrimination on the basis of sex, as a result of workplace differences involving Mr. Foran, Mr. Touralias, Mr. Salmons, Mr. Harding and Mr. DiCiocco, have no reasonable prospect of success. They submit that the conduct about which the applicant complains was routine workplace banter, or differences of professional opinions.

44In her Response to the Request for Summary Hearing, the applicant submits that she believes that the allegations of discrimination based upon gender would succeed should her allegations be assumed to be true, and would make out a prima facie case of discrimination. The applicant submits that she was disrespected and denigrated by her male co-workers and supervisors, and she disputes the characterization of her allegations of discrimination based on sex in the workplace as simply workplace challenges or disputes. She submits that a summary hearing, without oral testimony, cannot provide the Tribunal with the proper evidence and context within which the applicant found herself.

45At the summary hearing, the applicant reviewed the various allegations in the Application and submitted that her workplace is male-dominated. She felt that comments made by others and their attitude towards her in the workplace, although not directly sexually charged, were based primarily on sex and that there was a “gender difference” in the office. She submitted that she feels isolated by the men in the workplace, and excluded from the “club”, and she feels it is because she is a woman.

Mr. Touralias and Mr. DiCiocco

46Having carefully considered the parties’ materials and submissions, I find that the allegations in the Application involving Mr. Touralias and Mr. DiCiocco, commencing with an allegation concerning Mr. Touralias on December 2, 2010, have no reasonable prospect of success. Mr. Touralias is alleged to have, among other things: made sarcastic comments to the applicant; been aggressive and rude to her; questioned her job title; made derogatory comments about Planners; engaged in argumentative behaviour; and, been offended by an email the applicant sent him. Mr. DiCiocco is alleged to have, among other things: strongly disagreed with the applicant and the Town’s solicitor; given the applicant a “dirty” look; said in a sarcastic tone that maybe he should go on “stress leave”; and, “stormed” out of a meeting saying that he was done talking to the applicant and the Planning Coordinator.

47The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. Unfair or negative treatment is not discriminatory unless there is proof that an alleged Code ground was a factor in the treatment. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth. Rather, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary. Also, accepting the facts as alleged by an applicant does not include accepting the applicant’s assumptions about why the applicant was treated unfairly. The question the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available at a hearing on the merits of the application to link the unfair treatment experienced by the applicant with the alleged Code ground or grounds. See Dewling v. Toronto Police Services Board, 2014 HRTO 1617 at paras. 17 and 18.

48In the present case, the applicant submits that she feels that the negative treatment she received from Mr. Touralias and Mr. DiCiocco in the workplace is related to the prohibited ground of sex in the Code. She also submits that she felt a “spillover” from the earlier more egregious comments alleged to have been made by Mr. Piescic, Mr. Harding and Mr. Holling to the other men in the office. The applicant also alleges, however, that shortly after she complained to Mr. Foran and Mr. Holling about Mr. Touralias and Mr. DiCiocco, a female co-worker told her that the two previous Planners, who were both male, were treated the same way as her. She also alleges that, on another occasion, another female co-worker also told her that the two previous Planners were treated the same way as her, and that they left their employment because of the treatment.

49The Tribunal’s September 19, 2014 CAD directed the applicant to point to the evidence on which she would establish a link between the respondents’ alleged actions and an alleged Code ground. In the circumstances, I find that the applicant has not established that evidence she has, or that is reasonably available to her, is sufficient to establish, or draw an inference, that there is a link between the various events set out in the Application involving Mr. Touralias and Mr. DiCiocco, commenting December 2, 2010, and the prohibited ground of sex, as alleged. As such, I find that these allegations have no reasonable prospect of success and they are dismissed.

Mr. Salmons

50I also find that the allegations in the Application involving the individual respondent, Mr. Salmons, have no reasonable prospect of success. Mr. Salmons was hired by the Town as its Director of CDS in April 2012 and is the applicant’s direct supervisor. Mr. Salmons is alleged to have done the following in 2012: tried to intimidate the applicant when she met with him about an email he sent her that she thought was inappropriate; told the applicant that Mr. Touralias was offended by an email she sent him and that she needed to be more careful with email; and, told the applicant that Mr. Touralias was upset with her because she did not see him as a Director. Mr. Salmons is also alleged to have done the following in January of 2014: made a comment in a report that was not accurate that the applicant felt was misleading to Council; asked the applicant to leave a meeting regarding a lawsuit, and made a comment that she took offence to since it appeared he held a bias against professional Planners; and told the applicant that “if you don’t have someone who can integrate with other departments, then the organization cannot function”, when she asked him about his comment that the Planning department was creating a “silo culture”.

51The applicant also alleges in the Application that she complained about Mr. Salmons to Mr. Foran and Ms. Nussey by email on June 21, 2012 and also met with them on July 10, 2012. There is no indication that the applicant ever raised with Mr. Foran or Ms. Nussey that she thought that Mr. Salmons’ behaviour towards her was related to gender. At the summary hearing, the applicant submitted that Mr. Salmons had a “superiority complex” and engaged in actions that were intimidating and offensive.

52Having considered the applicant’s materials and submissions, I find that the applicant simply has not established that evidence she has, or that is reasonably available to her, is sufficient to establish, or draw an inference, that there is a link between the actions set out in the Application involving Mr. Salmons and the prohibited ground of sex, as alleged. As such, I find that these allegations have no reasonable prospect of success and they are dismissed.

Mr. Foran

53With respect to Mr. Foran, the applicant alleges that she complained to Mr. Foran and Mr. Holling about Mr. Touralias and Mr. DiCiocco on December 6, 2011 and never heard anything back from them. In an email to Mr. Foran and Mr. Holling dated December 6, 2011, the applicant refers to Mr. Touralias and Mr. DiCiocco not being receptive to her willingness to help them. I find that there is nothing in the applicant’s materials or submissions that would suggest that Mr. Foran (or Mr. Holling) would have reasonably been aware that the applicant’s complaint about Mr. Touralias and Mr. DiCiocco was in any way related to a Code ground. As such, to the extent that the applicant may be alleging that Mr. Foran (and Mr. Holling) violated the Code by not appropriately responding to her complaint about Mr. Touralias and Mr. DiCiocco, I find that this allegation has no reasonable prospect of success, and it is dismissed.

54The applicant also alleges that Mr. Touralias stated: “I hate Planners” at a meeting on September 17, 2013 and that Mr. Foran did not say anything to him. To the extent that the applicant may be alleging that Mr. Foran violated the Code by not responding to Mr. Touralias’s comment at the meeting, I find that this allegation has no reasonable prospect of success, as there is nothing in the applicant’s materials or submissions that would suggest that the comment was in any way related to a Code ground. This allegation is dismissed.

55Also, to the extent the applicant may be alleging that Mr. Foran violated the Code by not appropriately responding to her complaint about Mr. Salmons, I also find that this allegation has no reasonable prospect of success, and it is dismissed. I find that there is nothing in the applicant’s materials or submissions that would suggest that Mr. Foran (or Ms. Nussey) would have reasonably been aware that the applicant’s complaint about Mr. Salmons was in any way related to a Code ground.

Remaining Allegations

56The remaining allegations involving Mr. Foran include, among other things, that: in January or February 2013, he said to the applicant “you are just a little girl”; in August 2013, he made various comments outside the applicant’s door, saying “he wanted to start the process to get rid of Kim if she did not start talking more to them…”; and, at a meeting with him on February 5, 2014, the applicant finally accused him and others of harassment and sexual harassment over the years, and he let her know he would look in to that if she wanted him to, and asked her if she was just going to “quit the organization”. There is also an allegation that, in January 2012, Mr. Harding made a negative comment to the applicant in relation to her possibly applying for her supervisor’s position when it was posted. There is also an allegation that, a meeting on April 2, 2014, Mr. Harding put his arm around the applicant.

57At this stage of the proceeding, prior to having heard any evidence, it is not appropriate to make findings with respect to the applicant’s allegations. In my view, the applicant may be able to establish a link between the remaining allegations concerning Mr. Foran, commencing with the alleged comment in January or February 2013, and the January 2012 and April 2, 2014 allegations involving Mr. Harding, and a Code ground. I do not find, at this stage, that these remaining allegations have no reasonable prospect of success.

Individual Respondents

58As there are no remaining allegations in the Application concerning the individual respondents, Mr. Piescic, Mr. Holling, Mr. Touralias, Mr. DiCiocco, and Mr. Salmons, these individual respondents are removed from the Application, and the style of cause is amended accordingly.

59The respondents have asked that the Tribunal exercise its discretion and remove the individual respondents from the Application, including Mr. Foran and Mr. Harding. The applicant disputes this request and submits, among other things, that the individual respondents should remain parties to the Application in the event the Tribunal orders individual remedies involving the individual respondents.

60The conduct of Mr. Foran and Mr. Harding is a central issue with respect to the remaining allegations. If an infringement is found, it is possible that it would be appropriate to award a remedy involving these individual respondents. In my view, it would be premature to remove these individual respondents at this point in time. See Bianca v. Maritime Travel, 2010 HRTO 1077 at paras 3 and 4, and Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4 and 5.

61The respondents’ request that the individual respondents, Mr. Foran and Mr. Harding, be removed as parties to the Application is therefore dismissed at this stage of the proceeding.

CONCLUSION

62The allegations in the Application concerning Mr. Foran, commencing with the alleged comment in January or February 2013, and the January 2012 and April 2, 2014 allegations involving Mr. Harding, are not dismissed on the basis that they have no reasonable prospect of success, at this stage of the proceeding.

63The remaining allegations in the Application are dismissed on the basis of either delay, or on the basis that they have no reasonable prospect of success, as set out above.

64The individual respondents, Mr. Piescic, Mr. Holling, Mr. Touralias, Mr. DiCiocco, and Mr. Salmons, are removed from the Application, and the style of cause is amended accordingly.

65The respondents’ request that the individual respondents, Mr. Foran and Mr. Harding, be removed as parties to the Application is dismissed at this stage of the proceeding.

66Since the parties have agreed to attend mediation, the Tribunal will schedule mediation in this matter, and will advise the parties of the date and location by Notice of Mediation.

67I am not seized.