Miszkiel v. Peel District School Board, 2016 HRTO 1230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jolanta Miszkiel

Applicant

-and-

Peel District School Board, Mary Anne McArthur,

Tina Morrison, Jan Courtin and Shirley Ann Teal

Respondents

-and-

Elementary Teachers’ Federation of Ontario

Intervenor

A N D B E T W E E N:

Jolanta Miszkiel

Applicant

-and-

Elementary Teachers’ Federation of Ontario, Mathew Curran,

Colleen Lee, Jennifer Mitchell and Sharron O’Halloran

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: September 20, 2016

Citation: 2016 HRTO 1230

Indexed as: Miszkiel v. Peel District School Board

APPEARANCES

Jolanta Miszkiel, Applicant

Self-represented

Peel District School Board, Mary Anne McArthur, Tina Morrison, Jan Courtin and Shirley Ann Teal, Respondents

Roy Filion, Counsel

Elementary Teachers’ Federation of Ontario, Mathew Curran, Colleen Lee, Jennifer Mitchell and Sharron O’Halloran, Respondents

Christine Davies, Counsel

1This Decision concerns two Applications that the applicant filed, 2015-19936-I (the “First Application”) and 2015-22058-I (the “Second Application”).

2The First Application, filed on January 23, 2015, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleges discrimination with respect to employment because of place of origin, ethnic origin and reprisal. In this Application, the applicant, who identifies herself as Polish, described several events arising in the course of her employment as a teacher for the respondent school board that she states amount to discrimination or reprisal under the Code. The following is a summary of the allegations that occurred at Aloma Public School in the 2013-2014 and 2014-2015 school years set out in the narrative to the First Application:

1. The applicant was assigned a windowless classroom in the 2013-2014 and 2014-2015 school years;

2. Her principal, Ms. Morrison, disregarded her teaching preferences;

3. The applicant was assigned to teach Kindergarten for several consecutive years, including the 2014-2015 school year, despite medical information indicating that she should teach older students;

4. Ms. Morrison required the applicant to complete separate lesson plans for each 40-minute period assigned to her. Other teachers were not required to make such lesson plans;

5. The applicant was required to provide extensive written assessments of Kindergarten students. Other Kindergarten teachers were not required to do so;

6. In November 2013, Ms. Morrison directed the applicant to teach both Drama and Dance in each class;

7. In the 2014-2015 school year, Ms. Morrison required the applicant to create report card comments for Science and Technology for five Kindergarten classes;

8. The applicant was required to teach and report on both Drama and Dance and to provide comments for these subjects for report cards. The applicant described this as “double reporting work”;

9. Ms. Morrison refused to clarify directions regarding indoor versus outdoor supervision in the 2014-2015 school year;

10. Ms. Morrison did not clarify regarding boundaries for students playing outside in September 2014;

11. The applicant received a Letter of Expectations containing slanderous statements on November 17, 2014;

12. The applicant received an unfounded Letter of Discipline on December 17, 2014;

13. The applicant received an “out of cycle” Teacher Performance Appraisal in the 2013-2014 school year;

14. The respondents did not place the applicant’s “Response to Summative Report” in her personnel file;

15. The respondents removed the attachments to the applicant’s second (Unsatisfactory) “Response to Summative Report” from her personnel file;

16. The applicant was not permitted to attach photographs of Kindergarten students engaged in learning to her “Response to Summative Report”;

17. The applicant was denied access to the photocopier in September and October 2014 and accused of making excess copies.

18. Ms. Morrison falsely accused the applicant of being rude and disrespectful to parents;

19. The applicant was excluded from the staff photograph in 2013-2014 school year; and,

20. Ms. Morrison treated the applicant disrespectfully in front of other staff on October 6, 2014.

3The applicant also states that she filed four internal complaints of harassment and discrimination in May 2007, May 2011, April 2013 and July 2014, respectively. The applicant filed these complaints with the First Application.

4The Second Application, filed on September 21, 2015 under section 34 of the Code, alleges discrimination with respect to membership in a vocational association and with respect to employment because of place of origin, ethnic origin, and reprisal. In the Second Application, the applicant alleges her trade union, the Elementary Teachers Federation of Ontario (the “union”), and its personnel did not represent the applicant properly. For example, the applicant alleges that the union representatives did not support her adequately and refused to file a grievance regarding her internal human rights complaint in 2011 and 2012. The applicant states that the union did not assist when she experienced harassment from her principal and other administrators in the 2013-2014 school year and in some cases sided against her. The applicant states that she requested the union’s assistance regarding Letters of Discipline that she received in 2014 and requested that the union file grievances on her behalf. The applicant alleges that, instead, the union sided with the school board and refused to file grievances for her. The applicant’s employment was terminated in June 2015 and the union filed a grievance on her behalf. The applicant states that, at the time she filed the Second Application, she had not heard from the union to discuss the grievance.

The hearing

5In a Case Assessment Direction dated November 30, 2015, the Tribunal ordered that a joint summary hearing/preliminary hearing be held to determine whether the Applications should be dismissed, in whole or part, for delay or because they have no reasonable prospect of success. The Tribunal held a summary hearing/preliminary hearing by teleconference on March 21, 2016.

Delay

6Sections 34(1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The Tribunal has considered the issue of what amounts to a series of incidents for the purposes of section 34(1)(b) of the Code on several occasions. In doing so, the Tribunal has developed principles for evaluating whether incidents alleged to have occurred more than one year before an application is filed amount to a series of incidents. The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change, 2010 HRTO 1621. Similarly, the Tribunal has found that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos v. Mississauga (City), 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board, 2009 HRTO 1225, and Savage v. Toronto Transit Commission, 2010 HRTO 1360. However, a temporal gap of more than a year is not always decisive in assessing whether incidents amount to a series. See, Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927, and Labao v. Toronto Police Services Board, 2012 HRTO 1529. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

8The 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 at paragraphs 24 and 25:

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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

Delay and the First Application

9The applicant filed this Application on January 23, 2015. As described above, several of the incidents set out in the Application allegedly occurred more than one year before this date, including the allegations contained in some of the internal complaints the applicant incorporated into the First Application. The respondents raised delay as a preliminary issue in their Response. The issue before me is whether these incidents form a series with the incidents alleged to have occurred within one year of the filing date and, if not, whether the delay was incurred in good faith and no substantial prejudice will result as a result of the delay.

The Applicant’s Submissions

10The applicant submitted that most of the allegations set out in the narrative to the First Application (see paragraph 2, above) occurred within a year of January 23, 2015, the date the applicant file the First Application. The applicant submitted that the incidents alleged to have occurred more than one year prior to that date formed a series with the timely allegations, pursuant to section 34(1)(b).

11In that respect, I agree that the applicant’s internal complaints filed in April 2013 and July 2014 share a common theme with the applicant’s allegations set out in the First Application. In these two complaints, the applicant sets out a long list of incidents in which she believed she was treated unfairly in terms of work space, teaching assignments, resources, disrespectful behaviour and workload from the commencement of the 2011-2012 school year, up to and including the filing date of the First Application. Indeed, several of the applicant’s allegations in the complaint of July 2014 are repeated in the First Application. There do not appear to be gaps of a year or more in the sequence of events the applicant describes. Ms. Morrison, the applicant’s principal in this time period, is alleged to have committed most these alleged acts of discrimination. As a result, these allegations appear to amount to a series of incidents for the purposes of section 34(1)(b). The evaluation of whether the allegations amount to discrimination is described below in the discussion of no reasonable prospect of success.

12The applicant’s internal complaints filed in May 2007 and May 2011 do not in my view form a series with the timely incidents in the First Application. The complaint of May 2007 concerns incidents alleged to have occurred in 2006 and 2007, when the applicant taught at William Parkway SPS. Accordingly, there is a gap of several years between this complaint and even the applicant’s next complaint in May 2011. The applicant alleges that she was subject to bullying, harassment, unfair criticism and was put in unsafe situations by her administrators Mr. W. and Ms. V. The nature of the allegations are therefore somewhat different than the allegations set out in the First Application and the people involved are completely different. The applicant’s complaint of May 2011 consists of allegations of unfair treatment by her principal, Mr. G., while at Aloma Public School from the commencement of the 2008-2009 school year until the spring of 2011. The allegations in this complaint are fairly similar to those set out in the applicant’s later complaints and the First Application. However, the actions described in the May 2011 complaint are attributed exclusively to Mr. G, who was no longer the applicant’s principal after the 2010-2011 school year and the applicant does not attribute any of her later complaints to him. Neither did the applicant point to any evidence that Ms. Morrison’s actions were a continuation of Mr. G.’s actions or in any way related to the applicant’s interactions with Mr. G. In my view, there is no nexus between the allegations against Mr. G. and the applicant’s later complaints. Consequently, I find that the allegations set out in the applicant’s complaints of May 2007 and May 2011 do not form a series of incidents with the timely incidents described in the First Application. Accordingly, the allegations from 2007 and 2011 are untimely and I must consider whether the applicant has a good faith explanation for the delay.

13The applicant submitted that the delay in filing the Application regarding these allegations is explained by the fact that the union was supposed to assist her in stopping the alleged discrimination she experienced. The applicant submitted that she consistently sought the union’s advice. The applicant also submitted that the union was colluding with the respondents and also threatened her with reprisals. The applicant clearly felt that her human rights had been violated and repeatedly filed internal complaints setting out her concerns, as well as a complaint to the Ontario Labour Relations Board and two applications to this Tribunal. Accordingly, the applicant’s assertion that she was deterred by fear of reprisal does not reflect her actions over several years. Waiting for the union to assist her, despite believing her human rights had been violated, is not a good faith explanation for delay. In my view, the applicant has not provided a good faith explanation for the delay regarding her complaints of May 2007 and May 2011. In these circumstances, it is unnecessary to consider the issue of prejudice. The 2007 and 2011 allegations are dismissed for delay.

no reasonable prospect of success

14Section 5 of the Code provides as follows:

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

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

15Section 8 of the Code provides as follows:

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.

16Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

17In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding the concept of no reasonable prospect of success at paragraphs 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

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

18The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. In a summary hearing, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

19At a summary hearing, 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. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

20The Tribunal has stated that the mere fact that a trade union chooses not to pursue a particular grievance is not proof, in itself, of a violation of the Code, since a trade union may have any number of non-discriminatory reasons for not pursuing a grievance. Similarly, the fact that a union may not have adequately represented an applicant is not sufficient to establish discrimination absent evidence connecting the union’s actions to prohibited grounds of discrimination. In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at paragraph 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

Does the First Application Have No Reasonable Prospect of Success?

21In her written and oral submissions regarding whether the First Application has no reasonable prospect of success, the applicant reiterated the facts set out in her previous complaints and in the First Application. In her oral submissions, the applicant stated that a union representative believed that the harassment and discrimination she experienced in the 2006-2007 school year by Mr. W. was based on her ethnic origin. As a result, the applicant submitted that once she understood this it was possible to understand Mr. W.’s actions against her. The applicant also pointed to the fact that Mr. G. asked her about her ethnic/place of origin when they first met in 2008 and proceeded to treat her inequitably.

22Regarding reprisal, the applicant made four submissions as follows:

1. the four internal complaints she filed with the school board contained descriptions of the actions taken in reprisal for filing each previous complaint;

2. the Application describes 21 acts of discrimination by individual respondent Trina Morrison that were acts of reprisal;

3. Ms. Morrison treated the applicant differently than other colleagues, e.g., double the amount of report card work; and,

4. Ms. Morrison advised the applicant that filing a complaint against her was not appropriate.

Analysis and decision

23Regarding the allegations in the First Application not dismissed for delay, the applicant did not in my view point to evidence that she has or has reasonably available to her that would connect the respondents’ alleged actions to the Code grounds upon which she relies. The First Application describes several events culminating in the termination of the applicant’s employment that were unwelcome to her, including work assignments and discipline with which she disagreed. The description of these events in the First Application does not include any facts connecting these events to the Code grounds she relies on or facts that amount to a reprisal under the Code. As noted, the applicant relied on the allegations in the narrative to the application and her four previous internal complaints. Of course, simply reiterating the facts asserted in the Application is not sufficient to establish a link between the respondents’ actions and the Code grounds cited.

24In the Application and in her submissions, the applicant stated that these alleged incidents were discriminatory. This was no more than a bald assertion that is not sufficient to establish a connection with the prohibited grounds of discrimination upon which the applicant relies. The union representative’s alleged opinion that Mr. W.’s behavior was discriminatory is not evidence and does not provide a basis for inferring that Mr. G.’s conduct was also discriminatory. In any event, these allegations have been dismissed for delay.

25To establish reprisal, the applicant must establish that the school board’s personnel took action against her or made threats that were intended to retaliate against her for asserting her human rights. The applicant’s first three submissions were that the actions described in her complaints in the narrative to the application were also acts of reprisal. Again, this is no more than a bare assertion. The applicant did not point to any evidence that she has or has reasonably available to her that could support the inference that actions taken subsequent to her complaints amounted to retaliation for asserting her human rights. The applicant pointed to evidence that Ms. Morrison told the applicant that the applicant’s complaint against her was “inappropriate”. In my view, this assertion does not amount to a threat, as there is no indication that Ms. Morrison would take any action against the applicant. The fact that Ms. Morrison did not appreciate the applicant’s complaint is not enough, by itself, to amount to reprisal. In my view, the applicant has not shown that she has any evidence that would connect to the respondents’ alleged actions to the Code grounds she has claimed in the First Application. I find that the allegations in the First Application not dismissed for delay have no reasonable prospect of success and are dismissed.

The Second Application

26The applicant submitted that there were five alleged incidents of discrimination that occurred within one year of the filing date of the Second Application. The applicant submitted that the incidents alleged to have occurred more than one year prior to the Second Application filing date formed a series with these timely events.

27The applicant submitted that the first timely event occurred on September 30, 2014. On that date, the applicant met with her principal, Ms. Morrison, and with a union representative, Jennifer Mitchell. The meeting concerned student safety and the applicant wanted Ms. Morrison to provide clarification of her expectations. The applicant submitted, however, that Ms. Mitchell “sided” with Ms. Morrison by restricting her ability to speak and by advising her not to raise her concerns about student safety. The applicant submitted that the second timely incident occurred on October 17, 2014, when Ms. O’Halloran, Ms. Lee and Ms. Mitchell refused to file a grievance on her behalf, despite knowing about the ongoing discrimination the applicant experienced. Following that meeting, Ms. Mitchell also defended Ms. Morrison’s views regarding boundaries for children playing outside.

28The applicant submitted that the third timely incident occurred during a meeting on October 29, 2014. The applicant alleged that the meeting again concerned student safety and workload issues. The applicant submitted that Ms. Mitchell again sided with management personnel and did not support her.

29The fourth timely incident the applicant described occurred on December 5, 2014. On that day, the applicant attended a meeting with Ms. Morrison, and Mr. Curran was her union representative. The applicant states that Ms. Morrison questioned her in a demeaning and humiliating manner, but Mr. Curran breached his duty of fair representation. The applicant also submitted that Mr. Curran delayed in providing a summary of the meeting and when he did the summary was incomplete and inaccurate.

30The fifth incident was an allegation the applicant sought to have added to the Second Application in two Requests for Orders During Proceedings the applicant filed on December 23, 2015 and on January 21, 2016, respectively. The applicant states that the union filed a grievance regarding the termination of her employment, but refused to take it to arbitration. The applicant filed correspondence that she submitted as evidence of this discrimination. The applicant alleges that Ms. Lee and Ms. Mitchell required the applicant to undergo a psychiatric evaluation as a condition of taking her grievance to arbitration, which the applicant submitted amounted to discrimination and reprisal or the Code.

Timely Allegations Have No Reasonable Prospect Of Success

31In my view, all five of these timely incidents have no reasonable prospect of success. Each of these incidents involves circumstances in which the applicant believes her union representatives did not provide her with adequate representation or in which the union declined to file or continue with a grievance. The Tribunal has held, however, that the mere fact that union declines to file a grievance – even one concerning human rights issues – is not sufficient to establish discrimination under the Code. See Traversy, above. Similarly, the fact the applicant is a person who can be identified in terms of Code grounds is not sufficient to make the respondents’ allegedly improper or unfair actions discriminatory. Rather, the applicant must be able to identify evidence that she has or has reasonably available to her that could connect the respondents’ actions to the Code grounds cited. See Forde, Szabo and Badvi, above. The first four allegations (the meeting of September 30, 2014; the failure to file a grievance on October 17, 2014; the meeting of October 20, 2014; and the meeting of December 5, 2014) contain no reference to prohibited grounds of discrimination and the applicant did not point to any evidence that would connect the respondents’ actions to any Code ground. As a result, these allegations have no reasonable prospect of success and are dismissed.

32The fifth allegedly timely incident, the union’s decision not to proceed with a grievance regarding applicant’s dismissal, is related to the ground of disability. Nonetheless, I find that the evidence the applicant pointed to could not amount to discrimination under the Code. The documents filed along with the applicant’s Request of December 23, 2015 indicate that in late November 2015, the applicant met with a union representative, Colleen Lee, and a lawyer retained to advise regarding the applicant’s grievance. In a letter dated November 13, 2015, Ms. Lee summarized counsel’s advice that it was very unlikely that an arbitrator would reinstate the applicant in the circumstances. The only chance counsel saw was to pursue a disability argument, which seemed to be supported by some of the applicant’s documents. Accordingly, Ms. Lee stated that better medical evidence would be needed, including a referral to a psychiatrist. The documents filed with the applicant’s Request of January 21, 2016 include a letter from Ms. Lee to the applicant, dated January 19, 2016, explaining the union’s decision not to proceed to arbitration to challenge the applicant’s dismissal. Ms. Lee reiterated the legal advice provided, i.e., that it was highly unlikely that the applicant would succeed unless it could be established that she had a condition or disability that interfered with her performance. However, the applicant’s physician had provided a letter (also filed with the request) indicating that no such condition existed. In these circumstances, the union concluded that there was no real likelihood of success for the applicant grievance.

33The correspondence filed with these requests make clear that the union, through Ms. Lee, was attempting to find an argument that could persuade an arbitrator to reinstate the applicant to employment. Consequently, the union asked the applicant to provide medical information to support an argument that the behaviour that led to her dismissal was caused by a disability. When this evidence did not materialize, the union concluded that the applicant’s grievance was very unlikely to succeed and declined to pursue it, as it was entitled to absent discriminatory or other improper motives. In other words, the union declined to pursue the grievance further because the applicant was not disabled. The applicant did not point to any evidence that could connect the union’s decision to any other Code ground. The applicant described the union’s decision as reprisal, but she pointed to no evidence to support the inference that the union’s decision was intended as retaliation for claiming her rights under the Code. In these circumstances, I find that the applicant’s allegations regarding the union’s refusal to take the applicant’s dismissal grievance to arbitration have no reasonable prospect of success and they are dismissed.

34In light of the foregoing findings, all of the applicant’s allegations arising within one year of the filing date of the application have no reasonable prospect of success. The applicant submitted that the allegations against the respondents amount to a series of incidents for the purposes of section 34(1)(b). However, under section 34(1)(b), an application must be filed within one year of the last incident in the series and the Tribunal has held that allegations that have no reasonable prospect of success are not incidents for the purpose of section 34(1)(b). See Chappell v. Securitas Canada Limited, 2012 HRTO 874, Garland v. Canusa - CPS, 2012 HRTO 1309, Groh v. Waterloo (Regional Municipality), 2014 HRTO 1774, and Mozafarian v. Saint Elizabeth Health Care, 2016 HRTO 784. Consequently, there are no incidents that are alleged to have occurred within one year of the filing date of the Second Application and, as a result, there is no series of incidents. The applicant’s remaining allegations are therefore untimely because they occurred more than one year before the Application was filed and do not form part of a series of incidents. Accordingly, I must consider whether the delay was incurred in good faith and whether substantial prejudice shall result to any person affected by the delay.

35The applicant gave two reasons for the delay in filing the second application. First, the applicant submitted that the union had a duty of fair representation and it was inconceivable to her that the union would instead violate her Code rights, while advising her to file complaints to claim her rights. Second, the applicant submitted that she was afraid that her employment would be terminated and she feared reprisals for claiming her Code rights.

36In my view, neither of these reasons amounts to a good faith explanation for her delay. The applicant’s first reason was that she expected the respondent union to represent her dispute with the school board. As noted above, waiting for another process to conclude is not a good faith reason for delay. The union did not have the power to dismiss the applicant for employment with the school board. Further, the applicant has filed many complaints asserting her rights while employed by the school board, as well as an application to the Ontario Labour relations Board and the Applications at issue in this Decision. In light of the applicant’s strenuous advocacy for her rights over many years, despite what she considered to be reprisals, I do not accept fear of reprisal as a good faith explanation for delay in filing the Second Application. In the absence of a good faith explanation, it is unnecessary to consider the issue of prejudice. The allegations of discrimination arising more than one year before the filing date of the Second Application, i.e., all of the remaining allegations, are dismissed for delay.

Order

37The Tribunal orders as follows:

1. Application 2015-19936-I is dismissed.

2. Application 2015-22058-I is dismissed.