King v. London Life Insurance Company, 2016 HRTO 1228

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald King

Applicant

-and-

London Life Insurance Company and Murphy Planning Partners

Respondents

DECISION

Adjudicator: Bruce Best

Date: September 20, 2016

Citation: 2016 HRTO 1228

Indexed as: King v. London Life Insurance Company

APPEARANCES

Ronald King, Applicant

Richard J. Mazar, Counsel

London Life Insurance Company and Murphy Planning Partners, Respondents

Susan McCorquodale, Counsel

Introduction

1This Application alleges discrimination with respect to employment and/or contracts because of sexual harassment and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The Application was filed on March 9, 2015.

2By Case Assessment Direction (“CAD”) dated July 10, 2015, the Tribunal directed that a preliminary/summary hearing be held to address whether the Application should be dismissed on the basis that the allegations are untimely, that the applicant may not be able to prove a connection between what happened and the ground of sex and sexual harassment, and that it appeared that some of the allegations did not appear to fall under the Code. The CAD further specifically provided that the parties were required to file any additional documents they wished to rely on for the hearing within 35 days of July 10, 2015.

3The Application was originally scheduled for a hearing on November 4, 2015. However, the applicant did not appear, and the Application was dismissed; 2015 HRTO 1487. The applicant subsequently sought a reconsideration of that decision on the basis that the failure was due to a scheduling error on the part of counsel. The reconsideration was granted on that basis; 2016 HRTO 109. The hearing was heard by teleconference on June 13, 2016.

4As explained more fully below, I find that the Application must be dismissed on the basis of delay, and on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions or beliefs that would support his allegations.

Summary Hearing Process

5The 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, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that an application will succeed.

6The 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.

7The 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.

8However, 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 belief that he 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 with the Code’s protections.

9As 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.

10Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

11The applicant is a financial services advisor, and has had a contract with the respondent London Life since 1993. Mike Murphy, the principal of the respondent Murphy Planning Partners, is an employee of London Life, and was responsible for managing London Life’s contracts in the Peterborough region, including the contract with the applicant.

12The parties do not dispute that they had an acrimonious history. This Application, however, stems from one alleged incident on May 2-3, 2013. The incident is documented in an email from the applicant’s spouse to London Life on May 13, 2013, which stated, in part:

Mike [Murphy] had called to schedule a time to meet with Ron [the applicant], the following day. When Mike called, he asked for Ron. I told him that Ron was not in the office, and was I able to assist him.

Mike’s comment was “at least he is working, or at least he says he is”. Although this comment upset me at the time, I did not question Mike on it and we scheduled a time for Mike to meet Ron in our office that fit with Ron’s schedule for the next day.

After this conversation, I continued to question why Mike would say that “at least he says he is’ (meaning working). Was Mike trying to tell me something? Was Ron not working, but doing something else when he tells me that he is working? I wondered If Mike knew something I didn’t.

I mentioned this comment to Ron, when he returned to the office. I also told Ron that when Mike got here, for the appointment, I wanted to discuss this comment with him first.

When Mike got to our office, I greeted him, and told him that I wanted to speak with him before he spoke to Ron. Mike was fine with that, but needed to use the facilities first.

I showed him the office that I would be in, and asked that he see me before going to see Ron. (Actually Ron was on the phone when Mike arrived).

When Mike came to the office, I told him that the comment he made to me on the phone yesterday was very upsetting. Mike said he didn’t know what comment I was talking about.

So I told him that he said “so he is out working, or at least he says he is’. I asked Mike point blank, “are you trying to tell me that Ron Is fooling around on me? Mike said that he was not trying to tell me that. His comment was his attempt at humor, and he did not want me to read more into it.

13The Application alleges the above comment, “so he is out working, or at least he says he is”, allegedly made to the applicant’s spouse, was an insinuation that the applicant was having an affair, and that making this comment amounted to sexual harassment of both the applicant and his spouse. The applicant further claims that Mr. Murphy apologized for the comments, and claims that by doing so he therefore had acknowledged that the comments “inferred” sexual harassment. Both the applicant and his spouse complained about Mr. Murphy to London Life, claiming his behaviour was contrary to its Code of Business Conduct and Anti-Discrimination, Harassment and Violence Policy. London Life claims to have investigated the complaint, and determined that the comment did not constitute harassment and that Mr. Murphy had not breached the Code of Conduct.

14Though this does not appear to have been raised with the respondents in 2013, or in the Application filed in March 2015, in his Reply the applicant further suggests that the words used could also be interpreted to suggest that Mr. Murphy was making sexual advances towards the applicant’s spouse.

15The applicant further alleges that he has been subject to ongoing reprisal subsequent to making the complaint to London Life respecting Mr. Murphy’s comment.

16The respondents maintain that the comments were innocuous at best, and that the fact that Ms. King somehow interpreted them as sexual is not sufficient to amount sexual harassment or solicitation. It further argues that, in any event, given that the phone call between Mr. Murphy and Ms. King occurred in May 2013, and the Application was not filed until March 2015, the allegations under s.7 of the Code are untimely.

17As noted, the respondents acknowledge that there has been an acrimonious relationship with the applicant. The respondents further noted that a number of the documents filed by the applicant in support of his claim of reprisal referred to incidents that occurred before the May 2013 phone call. It further argues that the allegations of reprisal are also untimely, as none of the alleged incidents occurred after March 9, 2014, a year before the filing of the Application.

18At the hearing, the applicant argued that the reprisal was an ongoing event, continuing right up to the hearing date. When I asked whether the applicant could point to any specific incidents of reprisal that occurred after March 9, 2014, the applicant listed a number of other incidents involving disputes between the parties from later in 2014, and claimed that he could produce emails and transcripts of meetings to substantiate that the incidents occurred. None of these incidents had been identified in any materials filed prior to the hearing, nor had any of the documents referred to been disclosed.

19When asked what evidence he would present to link these events to the May 2013 complaint, or to show that they were intended as reprisal, the applicant argued that there were never problems prior to the complaint.

Findings

20The facts in this case are largely not in dispute; the dispute is with respect to the interpretation that could or should be given to the exchange that happened in 2013, and whether the subsequent difficulties between the parties were due to reprisal for having filed a complaint of sexual harassment.

Reprisal

21Section 8 of the Code provides as follows:

Reprisals

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

22In Noble v. York University, 2010 HRTO 878 (“Noble”) at para 31, the Tribunal stated

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON HRT), 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON HRT), 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

23As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond her or his own suspicions, that could make out a link to the Code. As noted in Noble, this means evidence that the respondent’s actions were intended as reprisal for the applicant claiming his Code rights. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

24First, I agree with the respondents that, prior to the summary hearing, the applicant had not identified any specific incidents of alleged reprisal that occurred after March 9, 2014; all the applicant claimed was that the reprisal was “ongoing”. Specifics were only provided in reply to the respondent’s submissions, and in response to questions raised by the Tribunal.

25I do have concerns about the applicant, who has been represented by counsel throughout these proceedings, not providing the details of these incidents until the hearing itself, and that alone may be sufficient to disregard the claims. However, even if I accept these incidents as being proper allegations of reprisal, the applicant has in any case not been able to point to any evidence whatsoever that would support his claim that these incidents were intended as reprisal for the complaints respecting sexual harassment from May 2013.

26The only submission in support of this allegation is that there were never problems before the complaints. The documents provided by the applicant, however, indicate to the contrary that there was in fact an acrimonious relationship between the parties long before May 2013. The fact that this difficult relationship continued after May 2013 and is ongoing (which, in fact, is not disputed) is not sufficient to support the allegations of reprisal. I find that there is no reasonable prospect of success that the applicant will be able to establish that he has been subject to reprisal for the May 2013, complaint.

Sexual Harassment / Solicitation

27Sections 7(2) and (3) of the Code read as follows:

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

28Sections 34(1) and (2) of the Code read 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.

29Even if I accepted that the comment could amount to a violation of s.7 of the Code, the allegation is well out of time. The comment was made in May 2013. The respondent London Life conducted an investigation of the complaint under its policies. It is not clear when London Life concluded its investigation, but it was no later than December 3, 2013. The Application was not filed until March 2015.

30The applicant did not attempt to provide any explanation for why he did not pursue an application with respect to the alleged comment or solicitation within one year of May 2013. Rather, he simply claimed that the incident and the subsequent incidents of alleged reprisal constitute a “continuum” of discriminatory behaviour. However, as noted above, I find that the allegations of reprisal have 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.

31In my view, the allegations under s.7 of the Code are clearly out of time under s.34(1)(a), there are no other incidents which could form part of a series for the purposes of s.34(1)(b), and the applicant did not point to any good faith justification for the delay. For these reasons, I find that the allegations respecting sexual harassment or sexual solicitation under s.7 of the Code must be dismissed as they are out of time.

Order

32For the above reasons, the Application is dismissed.