HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Kilpatrick
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and the Association of Management, Administrative and Professional Crown Employees of Ontario
Respondents
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Kilpatrick v. Ontario (Attorney General)
APPEARANCES
Michael Kilpatrick, Applicant
Simone Ostrowski, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Respondent
Caroline Cohen, Counsel
Association of Management, Administrative and Professional Crown Employees of Ontario, Respondent
Derrick McIntosh, Counsel
Introduction
1This Application alleges discrimination in employment because of disability, family status, marital status, sex, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). The Application also raises issues of systemic discrimination.
2The respondent Association of Management, Administrative and Professional Crown Employees of Ontario ("AMAPCEO"), the applicant's bargaining agent, filed a request that the Application be dismissed against it on the basis that the Tribunal has no jurisdiction over the allegations raised or because there was no reasonable prospect that it would succeed.
3The respondent Ministry of the Attorney General ("the Ministry"), requested that some of the allegations be dismissed for delay, and that other allegations be dismissed as having no reasonable prospect of success. The Ministry takes the position that there is only one allegation in the Application that is properly before the Tribunal, namely the allegation that the applicant was denied accommodation on the basis of family status in April 2014. The Application was initially filed on January 6, 2015.
4By Case Assessment Direction ("CAD"), the Tribunal directed that a preliminary and summary hearing be held to address the above issues. Following the CAD, the applicant filed an extensive Reply, which included considerable additional details respecting the allegations, including a number of additional details respecting what the applicant claims were incidents within a series from June 2007 until November 2014.
5As explained more fully below, I find that the allegations against the Ministry prior to April 2014 must be dismissed as being untimely or as having no reasonable prospect of success. I further find that the allegations against AMAPCEO must be dismissed on the basis that they are outside the Tribunal's jurisdiction, or have no reasonable prospect of success. I also find that the applicant has no standing to bring his claim that the legal system in which the employment, labour and human rights system operates on a systemic basis against individuals with mental health disabilities.
No reasonable Prospect of Success
6The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure ("Rules") as well as the Tribunal's Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
7The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal's jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.
8The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.
9However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code's protections.
10As the Tribunal indicated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 ("Forde"), for an Application to continue in the Tribunal's process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.
Factual Background
11The applicant is a long-term employee of the Ministry. He claims that he has required accommodation in the workplace on the grounds of disability, family status and marital status due to pervasive and ongoing mental health and familial issues which he has been living with over the past eight years stemming from the tragic death of his and his spouse's newborn child in 2007.
12His primary claim is that he requested flexible working hours as an accommodation, and that his requests were not appropriately addressed. An underlying basis for the application is that if his requests for accommodation had been with respect to a physical disability, rather than a mental disability, the Ministry would have treated the requests differently.
13It is not disputed that the applicant was granted a number of accommodations, including several leaves of absence, paid and unpaid, over the years in question.
Delay
Series of Incidents (Code s. 34(1)(b))
14The applicant filed an extensive Form 3 (Reply) on August 17, 2015, after retaining counsel. The respondents objected to the Reply, which included considerably more information than is contemplated by Rule 9 of the Tribunal's Rules of Procedure. By Interim Decision, 2015 HRTO 1301, the Tribunal ruled that the Reply should be considered an amendment to the Application at the pleading stage, and permitted the respondents to file supplemental Responses and the applicant supplemental Replies. The parties have referred to the August 17, 2015 Form 3 as the "Amended Application", which name I will also use in this decision for the sake of consistency.
15In the Amended Application, in paragraphs 13.a.-13.vv., the applicant provided a list of 48 alleged incidents of discrimination from 2007 until 2014. The applicant further takes the position that the 48 incidents listed were "not meant to be exhaustive, but rather illustrative of the ongoing nature of the discrimination." I understand this to be a reference to one of the applicant's claims that throughout his interaction with the respondents he was subject to marginalization as a person with a mental health disability, and that the incidents are indicative of systemic discrimination on that basis.
16The Ministry takes the position that many of the events listed in para. 13 of the Amended Application are not alleged incidents of discrimination at all, but are merely events in the chronology. In particular, the Ministry argues that the 5 events listed between November 2012 and April 2014 were not "incidents of discrimination" that could form part of a series of incidents for the purposes of s. 34(1)(b) of the Code, and that as a result there was a gap of 16 months between incidents. The Ministry noted that the Tribunal has held that a gap of more than one year was generally sufficient to break a series, and as such that any allegations prior to April 1, 2014 were out of time.
17The following allegations, reproduced verbatim from the Amended Application, are relevant for the purposes of this decision:
13.mm. November, 2012 - Mr. Kilpatrick is denied compassionate leave.
nn. December, 2012 – Mr. Kilpatrick begins graduated return-to-work.
oo. January to February, 2013 – Mr. Kilpatrick's third grievance is drafted and submitted by AMAPCEO.
pp. April, 2013 – All three of Mr. Kilpatrick's grievances are consolidated.
qq. August. 2013 – Mr. Kilpatrick requests a four-day work week during the fall of 2013 as part of his accommodation. Ms. Buckley only approved four-day weeks for two weeks at a time, citing possible workload issues that never arise.
rr. November, 2013 to February, 2014 – Mr. Kilpatrick realizes he has been paid at a lower pay grade for the past two years. All other employees in Mr. Kilpatrick's office who are AMAPCEO members had their pay grades were [sic] raised two years earlier. Mr. Kilpatrick requests that Ms. Buckley and Jackie Lawson, from Human Resources correct his incorrect pay grade dating back to April 1, 2011. Neither Ms. Buckley nor Ms. Lawson respond for two months until Mr. Kilpatrick initiates another grievance. Ms. Buckley corrects the missing back pay on Feb 12, 2014.
ss. April 1, 2014 – Mr. Kilpatrick's Manager, Sheri Wilkinson, retracts his prior approval to work through his 45-minute lunch break as compensation for missed time from work due to medical needs.
tt. June. 2014 – Mr. Kilpatrick formally requests, with an accompanying doctors note, to use his full lunch break as compensating time off, Ms. Wilkinson denies this request, stating that there is no current accommodation plan or current medical documentation on file that supports or speaks to a need for accommodation.
uu. November 19, 2014 – Mr. Kilpatrick requests a compressed work week, and is denied. According to a vacation schedule in Mr. Kilpatrick's office, many other colleagues appear to have been granted compressed work weeks.
vv. January 6, 2015 – Mr. Kilpatrick submits the Application to the Tribunal naming MAG and AMAPCEO as respondents.
18For ease of reference, I will refer to the allegations by the letters above, as used in the Amended Application.
19Many of the incidents raised by the applicant were also the subject of grievances filed on his behalf by AMAPCEO, which were scheduled to go to arbitration in April 2015. At the request of the Applicant, these grievances were withdrawn in February 2015, approximately a month after the Application was filed.
20Of the 48 alleged incidents of discrimination, only four, allegations 13.ss., tt., uu. and vv., occurred within the one-year prior to the Application being filed. Though Allegation 13.rr was apparently resolved as of February 12, 2014; it was not part of the original Application, and was raised for the first time in the Amended Application of August 17, 2015.
21The applicant claims that all the incidents from 2008 to 2014 were part of a series. He urged me not to take an overly formulaic approach to the issue of delay, on the basis that such an approach is inconsistent with the remedial aims of the Code. In particular, he argued that allegations of discrimination on the basis of mental illness cannot be easily separated out into discrete incidents, particularly in light of the applicant's allegations that the incidents are alleged to be as a result of systemic discrimination against individuals with mental health disabilities.
22The applicant further takes the position that he was unaware that he could pursue an application at the Tribunal when the issues were already the subject of grievances filed by AMAPCEO, and that as such the delay was incurred in good faith for the purposes of s. 34(2) of the Code.
Decision on Delay
23As noted above, the allegations generally arise from the applicant's request for accommodation with respect to his work hours over the past nine years. In order for the Tribunal to have jurisdiction over the allegations, I must find that the allegations fall within the scope of s. 34 of the Code.
24To be timely under s. 34(1)(a) of the Code, an incident of discrimination must have occurred within one year before the issues were first raised, usually the date the Application was filed. Older incidents of discrimination could be timely if they are found to be part of a series of incidents for the purposes of s. 34(1)(b). Even if not timely, the Tribunal has the discretion to permit it to nonetheless proceed if the applicant can establish that the delay was incurred in good faith and no substantial prejudice will occur to any person for the purposes of s. 34(2) of the Code.
25The Tribunal has held that a gap of more than one year between incidents will in most cases be sufficient to interrupt the series. See Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9, and Thambipillai v. Toronto District School Board, 2011 HRTO 487 at paras. 17-20. The Tribunal has, however, also held that those decisions should not be seen to import a rigid "less than one year" rule when determining whether two incidents are part of a series, particularly where there is a reasonable explanation for the gap. See Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927 at para. 11, and Umac v. Custom Black Inc., 2015 HRTO 1299 at para. 68.
26Even if within one year, there must also be some connection or nexus between the incidents in order for them to be considered as part of a series. See Pakarian v. Chen, 2010 HRTO 457 at para. 25, and Baisa v. Skills for Change, 2010 HRTO 1621 ("Baisa"). In DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049 ("DeFreitas"), the Tribunal provided further clarification on the finding in Baisa, noting that "series of incidents" could include where there was a common theme to the incidents, even if they appeared to be discrete. In DeFreitas, the Tribunal found that allegations around work assignments and allegations that she was not being considered for certain promotional processes were both incidents in a series, given the applicant's central claim that she was marginalized as a racialized employee, and that these were specific incidents which shared that common theme.
27As noted, the preliminary and summary hearing in this matter was both with respect to whether some of the allegations were timely, and also with respect to whether some of the allegations should be dismissed as having no reasonable prospect of success. If an allegation is dismissed as having no reasonable prospect of success, it cannot be held to be an incident in the series. See Chappell v. Securitas Canada Limited, 2012 HRTO 874, and Garland v. Canusa-CPS, 2012 HRTO 1309.
28It is also not sufficient to simply name an event and call it an allegation of discrimination. I agree with the Ministry that some of the events set out in para. 13 of the Amended Application are clearly not allegations of discrimination at all. Of the paragraphs reproduced above, for example, para 13.vv is the filing of this Application with the Tribunal.
29The primary issue in this case is whether the incidents of alleged discrimination form a series for the purposes of s. 34(1)(b), and, in particular, if there is a significant gap between incidents, whether there is any basis to depart from the case law that finds that such a gap would break a series.
Systemic Discrimination and Series of Incidents
30The Applicant alleges that his history of accommodation requests demonstrates a systemic bias within the Ministry against granting accommodations to individuals with mental health disabilities. He specifically argues that the adverse treatment he alleges he received from the respondents, and whether the above incidents form part of a series, has to be viewed in light of his claim of systemic discrimination. He argues that, by its cyclical or intermittent nature, mental health cannot be described through a series of discrete incidents, and that the Tribunal should not apply a formulaic timeline in determining whether the incidents described form a series for the purposes of s. 34(1)(b) of the Code.
31The Tribunal has addressed the issue of how a claim of systemic discrimination may affect the analysis under s. 34(1)(b) in several cases. In Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370 ("Midwives"), at para. 33, the Tribunal gave the following description of systemic discrimination:
Systemic claims are about the operation and impact of polices, practices and systems over time, often a long period of time. They will necessarily involve an examination of the interrelationships between actions (or inaction), attitudes and established organizational structures. A human rights application alleging gender-based systemic discrimination cannot be understood or assessed through a compartmentalized view of the claim. Whether or not the applicant will be able to establish a violation of the Code remains to be seen. However, the applicant has filed an Application on behalf of over 500 individuals, particularized it in detail, and provided a clear theory that links the events to a claim of gender-based systemic discrimination.
32In Grange v. Toronto (City), 2014 HRTO 633 ("Grange"), the Tribunal similarly addressed the issue of whether the allegations of systemic discrimination formed a series of incidents for the purposes of s. 34(1)(b) of the Code. The applicant in that case alleged, as summarized at para. 21 of the decision, that "for a period of approximately 10 years, she experienced a series of incidents which, when considered in the full context of her employment experience, will be found to be indicative of systemic racial and gender discrimination". The Tribunal held that, given the nature of the allegations and, particularly recognizing the difficulties associated with establishing direct evidence respecting intersectional racial and gender bias, that determining whether the allegations constituted a series of incidents was best left to the hearing adjudicator. It declined to dismiss the allegations on the basis that there was no reasonable prospect of success for the same reasons. See also DeFreitas, above.
33However, this does not mean that simply alleging systemic discrimination means an applicant's allegations will be timely. In AlSaigh v. University of Ottawa, 2012 HRTO 2, at paras. 15-16:
I do not accept that these events are part of a series of incidents given the existence of two extended breaks in the temporal connection between the alleged events. The Tribunal has found that a gap of more than one year between incidents in a series would in most cases interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442.
Further, I do not agree with the applicant's argument that the out-of-time events (2003-2008) should be accepted as part of a series of events because the applicant alleges systemic racial discrimination. I understand the applicant's position that the Tribunal needs to be sensitive to the patterned nuances of systemic discrimination and must be attuned to the subtle character of racialized discrimination: McKay v. Toronto Police Services Board, 2011 HRTO 499. However, as recognized by the Tribunal in Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310, the bare assertion of systemic discrimination cannot by itself create a nexus between separate occurrences and, in the instant case, particularly where there were two gaps between the incidents.
34In Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310, at para. 40, the Tribunal held:
Although the applicant suggests that the events are linked in that they reflect a general culture or attitude towards foreign-trained physicians within the College, there are no facts alleged which support this bald assertion beyond the events themselves. Beyond the broad suggestion that the Tribunal needs to hear evidence, the applicant did not point the Tribunal to any additional facts on which the Tribunal would be required to hear oral evidence, relating to the question of whether the events are a "series of incidents."
35Where an applicant can present a clear foundation for the allegations of systemic discrimination and its connection to the specific discriminatory incidents he or she claims to have experienced, it may well be appropriate for the Tribunal to take the approach adopted in Grange or Midwives. However, I also agree with the Tribunal's findings in AlSaigh and Keith that a bare assertion that the discriminatory incidents were the product of systemic discrimination is not enough to create a connection between incidents that would not otherwise be considered a series for the purposes of s. 34(1)(b) of the Code, particularly where there is a significant gap of time between incidents.
36As noted in paragraph 21, above, the applicant is alleging that the incidents are merely examples of systemic discrimination against him on the basis of his mental health, and that I should not take an overly formulaic approach to the issue of delay. However, the approach that the applicant is asking for is, in essence, to disregard the limitation period in Code s. 34(1). Applying that limitation period is not formulaic or a technicality; this is an issue going to jurisdiction. See Vrabie v. Peel Police Services Board, 2016 HRTO 488 ("Vrabie"), at para. 43.
37The applicant claims that the Ministry's response to his accommodation requests is indicative of a systemic bias against individuals with mental health disabilities. The only basis for this claim put forward is that if the requests for accommodation were with respect to a physical disability, the respondents would have treated them differently. The applicant, however, has not proposed any evidence to support this claim, and it is, as in AlSaigh, Keith and Vrabie, simply a bare assertion.
38The question in this case is whether the specific requests for disability and family status accommodation should be considered part of a series. I will address each of the allegations, from 13.oo. to uu. in turn to determine if they could be considered incidents in a series with the timely allegations, based on the principles outlined in paragraphs 23 to 29 above. As simply a bald assertion, the allegation that the refusal of his accommodation requests was based on systemic discrimination is not an appropriate factor in the analysis.
Allegations oo. and pp. (January and April 2013)
39These allegations relate to the filing and consolidation of several grievances. Generally speaking, where a unionized employee raises an incident of alleged discrimination against an employer and the employee's union subsequently files a grievance, steps taken in the grievance process will not be considered separate discriminatory incidents, and therefore will not extend the limitation period for filing an application under s. 34(1)(b) of the Code; the one-year time limit will still run from the date of the underlying incident that gave rise to the grievance. See Evanochoko v. City of Greater Sudbury, 2014 HRTO 410 ("Evanochoko") at para. 14, Mu v. Cargill Foods, 2011 HRTO 846 at para. 28, and Bish v. Canadian Union of Public Employees, 2011 HRTO 221 at para. 11.
40I agree with the analysis in those decisions, and find that the steps taken in a grievance are not incidents to which the Application relates, and as such cannot form part of a series of incidents of discrimination by the Ministry for the purposes of s. 34(1)(b) of the Code. Allegations 13.oo and pp are dismissed.
Allegation qq. (August 2013)
41The applicant alleges that he requested a 4-day work week for the fall of 2013 as an accommodation. He claims that his supervisor advised that the request could only be approved for two weeks at a time on the basis that there were possible workload issues that might arise. The applicant claims these potential workload issues never arose.
42The Ministry takes the position, and it is not disputed, that the applicant in fact received the shortened work week for the entire period he had requested. The Ministry further takes the position that fall was the busiest point of the year for the applicant's division, and that at the time of the request it was awaiting specific instructions from the Treasury Board that would impact the workload for the division over the fall. The Ministry further takes the position that workload issues did in fact arise, but that the decision was made nonetheless to continue honouring the applicant's request.
43For the purposes of this decision, without determining the issue, I will assume that the applicant's version of this incident is correct and no workload issues arose. However, even making that assumption, it is not clear how granting the requested accommodation, but placing a caveat that the accommodation may be revisited every two weeks given potential workload issues, amounts to discrimination.
44Had the request for a shortened work week as an accommodation been denied or revoked at any point, I would have had little difficulty in considering that to be an incident of alleged discrimination in the series for the purposes of s. 34(1)(b) of the Code. In the present case, however, this never happened – the applicant acknowledges that the accommodation was provided.
45The duty to accommodate does not require an employer to simply accept an employee's accommodation precisely and on the terms requested. To the contrary, the case law is clear that it is up to the employer to determine how, given the employee's restrictions, an employee can be accommodated. As stated by Sopinka J. in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 ("Renaud") at para. 44:
While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. …The complainant cannot expect a perfect solution.
46The applicant did not point to any evidence that would support the position that approving his accommodation request, but only two weeks at a time, would amount to discrimination. For this reason, I find that there is no reasonable prospect of success that this incident may be found to amount to discrimination, and for that reason cannot be considered an incident in a series for the purposes of s. 34(1)(b) of the Code.
Allegation rr. (November 2013 - February 2014)
47The applicant alleges that in November 2013, he discovered that he had not received a pay increase he should have received, and that it took the Ministry until February 2014 to correct the issue after he brought it to its attention. The Ministry acknowledges that there was an error, and claims that it was not limited to the applicant, but applied to a number of employees across the Ontario public service. The Ministry also notes that the error, and the responsibility for fixing it, did not originate with the respondent Ministry, but rather with the Ministry of Government Services, and that the applicant's managers were unaware that he was affected.
48The Ministry further submits that this alleged incident of discrimination is a separate and discrete issue from the other allegations, which are all respecting issues around accommodation, and as such cannot be part of a series for the purposes of s. 34(1)(b) of the Code. The applicant relies on DeFreitas, discussed above, and claims that that all the alleged incidents, including 13 rr., share a common theme of the applicant being marginalized because of his mental health. The Ministry argues that this is essentially saying that anything negative that happens to the applicant is discriminatory.
49I agree with the submissions of the Ministry that the error respecting his pay increase is not an incident in a series with any of the other allegations raised. The situation is quite different than in DeFreitas, where the various allegations, though different, were all specifically about the employee being denied certain career opportunities, and which could each be seen as another example of her alleged marginalization. In contrast, the incident respecting the pay increase is not in any way related to the allegations respecting the applicant's accommodation requests.
50The applicant indicates that the pay issue was resolved as of February 12, 2014. Though the first version of the Application was filed on January 5, 2015, this particular allegation was not raised until the Reply / Amended Application of August 17, 2015. Though the Interim Decision 2015 HRTO 1301 determined, at paragraph 10, that the Reply of August 17, 2015 should be considered "an amendment of the Application at the pleading stage", it did not address or make any finding that the allegations in the Amended Application were timely, but simply permitted the allegations to be raised. The fact that an applicant is entitled to raise an issue in the pleadings does not make it timely. The Interim Decision further permitted the respondents to file supplemental Responses and the applicant to file supplemental Replies. The Ministry did so, and raised as a preliminary issue whether the new allegations in the Amended Application were timely. In my view, in addition to not being part of a series of incidents, allegation 13.rr is also untimely, and must be dismissed.
Gap of more than one year
51For the reasons set out above, I find that none of the allegations in the Amended Application paras. 13.oo. to 13.rr. can individually be considered part of a 'series of incidents' for the purposes of s. 34(1)(b) of the Code. This means that there is a gap of approximately 16 months between allegations 13.mm. and 13.ss.
52Though I accept that there is no rigid one year rule for the purposes of s. 34(1)(b), I do agree that a significant temporal break can mean two incidents are not part of a "series". Whether or not there is a series may largely depend on the relationship between the incidents. In Yardley v. McMaster University, 2016 HRTO 490, I noted that being given a notice of termination and the enforcement of that termination might be found to be two incidents in a series even when separated by a period of two years. Though I found that the actual determination of that issue should not be made in the absence of evidence, the connection between the two incidents was sufficiently close that their connection should not be dismissed prior to a hearing on the merits.
53In the present case, however, the allegations from November 2012 and from April 2014 are related only in that they were both allegations that the Ministry had refused or revoked an accommodation. Beyond that, they are quite distinct; one involves a denial of a compassionate leave, the other a refusal to permit the applicant to work through his lunch.
54In my view, the difference in the nature of the accommodation sought and the significant gap of 16 months breaks the series such that the allegations from November 2012 and earlier are not part of a series with the timely allegations for the purpose of s. 34(1)(b) of the Code.
Good Faith (Code s. 34(2))
55The applicant also argues that, even if the application is untimely, that the delay was incurred in good faith and no substantial prejudice will result should all the allegations proceed to a hearing on the merits. His basis for this is that the issues raised in the Application were also raised in various grievances, and that he believed he could only pursue the matter before the Tribunal once those grievances were withdrawn.
56The Ministry notes that it would have been open to the applicant to file an Application in a timely manner with respect to the allegations, in which case it would have been deferred pending the outcome of the grievances. The Ministry noted, correctly, that applications are frequently filed and deferred on this basis, often on consent.
57The Tribunal's approach to delay and the issue of what amounts to "good faith" for the purposes of section 34(2) is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 ("Miller"), at para. 24:
In my view, where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
58The Tribunal has also consistently held that pursuing grievances will not amount to a good faith reason for a delay in filing an application. See Evanochoko, above, at paras. 19-20.
59For these reasons, I find that the applicant has not been able to demonstrate that the delay was incurred in good faith for the purposes of s. 34(2) of the Code.
Public Interest Application
60The applicant also raised a much broader allegation of systemic discrimination, namely that the adversarial nature of the legal system as a whole discriminates against individuals with mental health disabilities, in particular by relying on the concept of the "reasonable person". He proposes extensive remedies designed to reform the legal system in Ontario that governs employment and human rights law, including the establishment of task forces and inquiries into how the system can be changed to remove barriers to participation for individuals with mental health issues.
61I acknowledge that, as noted by the Supreme Court in Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 1999 CanLII 675 (SCC), at para. 61, the use of the "reasonable person" standard is not without controversy, and, if misapplied, can itself lead to prejudice. There is also little doubt that there are significant systemic issues affecting access to justice for individuals with mental health issues. However, this does not mean that the applicant is personally entitled to bring a public interest application to address any such issues within the legal system.
62In Carasco v. University of Windsor, 2012 HRTO 195 ("Carasco") at para. 17, the Tribunal held that an individual was not entitled to bring what was essentially a public interest application based on a tangential connection to issues that had affected them personally, and that permitting this would be to circumvent the intention of the legislature which provided distinct mechanism for public interest applications to be heard; see Carasco at para.14. In my view, this is precisely what the applicant is attempting to do in the present case, and for the same reasons set out in Carasco, I find that the applicant does not have standing to raise these issues.
Timely Allegations
63There are four timely allegations raised in the Application. Two of the allegations are closely related; 13.ss. and tt. claim that in April-June 2014 the Ministry retracted a prior approval which permitted the applicant to work through his lunch break, and subsequently refused to reinstate it when the applicant produced medical documentation in support of the request. The Ministry accepts that these allegations are timely, and they will proceed to a hearing on the merits.
64The two other timely allegations are that the applicant was refused a compressed work week in November 2014, and that he was disciplined as a reprisal in December 2014. The Ministry seeks to have both of these allegations dismissed on the basis that there is no reasonable prospect that they will succeed.
Compressed Work Week – November 2014
65In allegation 13.uu., above, the applicant has also alleged that he requested a compressed work week being granted to other employees, and was refused. The Ministry disputes that this was a request for accommodation, and rather indicates that it was a pilot project that the applicant could have, but did not, apply for earlier in the year, and that he was refused because the pilot was already well underway.
66Given the history of the applicant having made similar accommodation requests respecting flexible scheduling, I cannot find in the absence of evidence that this allegation has no reasonable prospect of success, and as such this allegation may proceed to a hearing on the merits.
Reprimand – December 8, 2014
67The applicant also alleges in his original Application that he was reprimanded in December 2014 for intervening with the Deputy Attorney General on behalf of a co-worker, and that this constituted reprisal under the Code.
68The applicant alleges that a co-worker had recently had her long-term secondment terminated, and was suffering emotionally as a result. He claims that he intervened on her behalf directly with the Deputy Attorney General. He was sent an email from his supervisor indicating having done so was inappropriate, and reminding him to follow protocol in the future. The applicant alleges that this "admonishment" was reprisal for having filed his various grievances raising his Code rights in the past, particularly through the grievances he had already filed.
69Unlike other grounds in the Code, to establish reprisal under section 8 of the Code, an applicant must be able to demonstrate an intention on the part of the respondent to punish or retaliate when the applicant attempts to enforce his or her rights under the Code. See Noble v. York University, 2010 HRTO 878 at para 31. In the present case, the applicant argues that there is a prima facie case of reprisal established because he was disciplined after filing grievances raising Code issues, and therefore this allegation should proceed.
70As noted by the Ministry, however, a person who files a grievance raising Code issues does not become "bulletproof". The fact that a person has raised Code issues in the past does not mean that they have thereafter met the test to establish a prima facie case, or, as in the present case, the test to avoid an allegation being dismissed as having no reasonable prospect of success. To establish an allegation of reprisal, an applicant must still be able to point to some evidence that would support the allegation that the subsequent action was intended as a reprisal.
71Though the applicant suggests that in the circumstances what he did was the right thing to do for his colleague, he did not point to any evidence to suggest that the admonishment was motivated by anything other than an appropriate response for an employee having not followed protocol. He has not been able to point to any evidence on which the Tribunal could reasonably make a finding of reprisal under the Code.
72For this reason, I find that this allegation of reprisal has no reasonable prospect of success, and must be dismissed.
Allegations against AMAPCEO
73The allegations against AMAPCEO are both under ss. 5 and 6 of the Code. I will address each separately.
Section 5
74There are only two situations where a union can be held liable for discrimination "with respect to employment" under s. 5 of the Code: the union has participated in establishing a discriminatory rule, or has impeded an employer's attempts to accommodate. See Renaud, at paras 35-42, and the Tribunal's analysis of that decision in Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 ("Gungor") at paras. 29-41.
75The applicant alleges that AMAPCEO failed to participate as required in the accommodation process with the Ministry, and claims that this impeded the Ministry's attempts to accommodate.
76First, I note that the allegations in this regard are all alleged to have occurred in 2008 to 2010, and the applicant has not provided any explanation for why the issue was not pursued in a timely fashion. However, even if they were timely, I would find that these allegations would nonetheless not fall under s. 5 of the Code.
77The allegations all relate to the union's unresponsiveness to his requests for advice on accommodation plans he was negotiating with the Ministry. In Renaud at para. 37, the Supreme Court explained that impeding an employer's attempts to accommodate will occur "if reasonable accommodation is only possible with the union's cooperation and the union blocks the employer's efforts to remove or ameliorate the discriminatory effect". There is no indication in the present case that the union was in any way required to participate in order for the applicant's accommodation plans to be implemented, and I do not see how failure to respond to the applicant's requests for advice could constitute impeding or blocking the Ministry's accommodation efforts.
78AMAPCEO takes the position that, if there were any claim against it, it would be with respect to the duty of fair representation pursuant to s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. As noted in Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 ("Arias") at para. 16, a union cannot be held to have violated s. 5 of the Code merely because it failed to adequately represent a member.
79There is no indication that AMAPCEO's involvement was required to implement the applicant's accommodations. I find that there is no claim that AMAPCEO discriminated against the applicant under s. 5 of the Code, and as such the allegation is outside the Tribunal's jurisdiction.
Section 6
80The applicant further claims that AMAPCEO failed to accommodate his disability, and as such is in breach of its obligations under s. 6 of the Code. The allegations in this respect mostly occurred in 2013 and 2014, and primarily relate to disagreements between the applicant and AMAPCEO with respect to how the grievances filed on the applicant's behalf were being handled. The two specific allegations are that AMAPCEO failed to accommodate the applicant's disabilities in this process, by attempting to coerce him into accepting a settlement which they knew he opposed, and by refusing to permit him to have independent counsel participate in a teleconference AMAPCEO held to discuss the grievances. AMAPCEO disputes these facts, but, for the purposes of this hearing, I will assume the applicant's version of events is true.
81The applicant argues that the refusal to permit him to have counsel at the teleconference was direct discrimination on the basis of disability. With respect to the remaining allegations, he argues that AMAPCEO's conduct, even if not discriminatory on its face, had an adverse impact on him as a person with a mental health disability. The applicant did not claim that he had specifically requested any accommodation of AMAPCEO, but argued that as it was aware he had a mental health disability, given its involvement with the accommodation process with the Ministry, it had nonetheless failed to meet its procedural obligations under the duty to accommodate.
82In Ruffolo v. Focus Assessments Inc., 2011 HRTO 1820, at para. 15, the Tribunal noted in the context of a summary hearing:
The Tribunal has stated that the duty to accommodate is not a "free-standing" obligation under the Code. It arises only pursuant to sections 11 where an individual is disadvantaged by the application of a neutral requirement, because of a personal characteristic covered by a prohibited ground of discrimination under the Code. In order to find that the respondent had a duty to accommodate the applicant under section 11, therefore, the applicant would have to convince the Tribunal that the requirement to sign the two authorization forms was a neutral requirement that had an adverse effect on him, because of his disability.
83It is clear that a union has an obligation to accommodate its members. However, in order for the matter to proceed, the applicant must be able to point to evidence that the actions of AMAPCEO did in fact constitute a failure of the procedural or substantive duty to accommodate. The applicant has not done so. Despite the lengthy written and oral submissions in this matter, the applicant has not pointed to any evidence to support his assertion that AMAPCEO's pressure on him to sign minutes of settlement, or it's limiting the role of the applicant's lawyer in internal discussions respecting the grievances, may have been discriminatory. The extent of the evidence is that AMAPCEO was aware that he had mental health and family status accommodation needs, and that he and the union disagreed on a number of issues. The applicant has not demonstrated that he in fact requested accommodation from the union. As noted in Renaud, at paras. 42-45, the applicant has a duty to assist in securing an appropriate accommodation, and the proposed evidence does not indicate that he has in fact done so.
84The primary evidence proposed respecting the nature of his disability accommodation was that he required flexibility and understanding from the Ministry in addressing his family situation and the resulting anxiety and depression he experienced. There was, however, no proposed evidence relating the alleged conduct of AMAPCEO, in either delaying a week in responding to his inquiries, or pressuring him to sign a settlement, or refusing to permit him to bring outside counsel to a union meeting, that could be found to constitute a breach of the Code.
85For the above reasons, I find that the Application against AMAPCEO under s. 6 of the Code has no reasonable prospect of success, and must also be dismissed.
Order
86The Application is dismissed as against AMAPCEO.
87The allegations against the Ministry prior to April 2014 are dismissed as being out of time under s. 34 of the Code.
88The allegation that the Ministry's email of December 8, 2014 constituted reprisal under the Code is dismissed.
89The Application may continue against the respondent Ministry with respect to the allegations from April 2014 and June 2014 and with respect to the allegation that he was refused a compressed work week in November 2014.
90I am not seized.
Dated at Toronto, this 29th day of August, 2016.
"Signed by"
Bruce Best
Vice-chair