Tonkovich v. Parkbridge Lifestyle Communities, 2016 HRTO 1353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Tonkovich Applicant

-and-

Parkbridge Lifestyle Communities Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: October 19, 2016 Citation: 2016 HRTO 1353 Indexed as: Tonkovich v. Parkbridge Lifestyle Communities

APPEARANCES

Michael Tonkovich, Applicant Self-represented

Parkbridge Lifestyle Communities, Respondent Kathleen Chevalier, Counsel

Introduction

1On March 18, 2016 the applicant filed an Application alleging discrimination with respect to employment and/or contracts because of sex including sexual harassment, sexual solicitation or advances and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On May 9, 2016, the respondent filed a Response, which denied the allegations of discrimination and reprisal. The respondent also raised a number of preliminary issues and requested that the Application be dismissed on a summary basis.

3In a Case Assessment Direction issued on August 11, 2016, the Tribunal directed that a summary hearing be held to address the following preliminary issues:

1. Should the Application, in whole or in part, be dismissed pursuant to s. 34 of the Code because of delay?
2. Should the whole Application be dismissed pursuant to Rule 19A on the Tribunal’s Rules of Procedure because there is no reasonable prospect that it will succeed?

4In his Application the applicant pointed to a number of health and safety issues and alleged that working conditions were horrendous. He acknowledged that these matters are not covered by the Code and that they were being provided “for context” only.

5The pertinent Code-related allegations are as follows:

a. Until the relationship was terminated in October 2014 the applicant was engaged by the respondent to provide drywall installing and finishing services.

b. From 2007 to 2009 the applicant and his co-workers were allegedly sexually assaulted by their manager who, by way of greeting, would pinch their nipples, sometimes very hard. His manager told the applicant that he had nice nipples.

c. It was made clear to the applicant that he would be dismissed if he complained and when he did complain, the manager “made a derogatory comment about him being “like his wife, because I never shut up”.

d. On many occasions the applicant’s manager told the applicant, in front of other people, that his penis did not work.

e. The applicant’s manager “emasculated, bullied and discriminated against” the applicant.

f. In October 2014 the applicant was fired.

6The applicant believes that these events were discriminatory and that he was subject to reprisal in being fired when he complained about being mistreated by his manager.

analysis and decision

7The Application is dismissed. I find that the allegations of discrimination are untimely because they are said to have occurred more than one year prior to the filing of the Application.

8Section 34(1) and (2) of the Code read as follows:

(1)If a person believes that any of his or her rights under Part 1 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.

9The applicant makes allegations of discriminatory incidents dating as far back as 2007 and ending with his termination on October 31, 2014.

10The Tribunal has interpreted section 34 as requiring that a person who wishes to pursue a claim of discrimination bring the claim forward by filing an Application within one year of the alleged incident of discrimination, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

11The applicant provided no explanation for the delay in filing his Application other than he had never heard of human rights until shortly before filing his Application. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than an absence of bad faith. With respect to the applicant’s assertion that he was ignorant of human rights laws and its requirement that an application be filed within the mandatory one-year limitation period, the Tribunal has said in many cases that ignorance of the law is no excuse in matters relating to delay in asserting one’s rights. See, Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 at para. 10 and Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8.

12Apparently, the applicant submitted a complaint to the respondent following his termination, in which he made a number of allegations, including harassment, and various contraventions of applicable health and safety legislation. Upon review of the complaint, the respondent retained a third-party investigator who conducted an investigation into the applicant’s allegations. The investigation concluded on January 13, 2015 and the applicant was informed of the results of the investigation on March 25, 2016.

13While the results of the investigation were arguably communicated to the applicant within the limitation period, this does not in itself make the Application in time. As outlined in Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 32, to find that there was a series of events, “there must be present acts of discrimination, which could be considered as separate contraventions of the [Code], and not merely one act of discrimination, which may have continuing effects or consequences.”

14The applicant has not pleaded any facts or provided any evidence in support of these events being characterized as separate incidents of discrimination or contraventions of the Code. Consequently, in my view, the complaint, the investigation, or the communication of the results of the investigation cannot credibly be viewed as breaches of the Code and therefore cannot reasonably constitute a “series of incidents” within the meaning of the Code.

15Further, in Baisa v. Skills for Change, 2010 HRTO 1621 and Savage v. Toronto Transit Commission, 2010 HRTO 1360, the Tribunal held that where there is a gap of more than one year between events, events prior to the gap will not generally be considered as part of a “series of incidents” under section 34(1)(b) of the Code.

16In my view, the applicant has not provided any allegations of incidents occurring within the limitation period that can credibly be viewed as incidents of discrimination or harassment, and even if they could, I am of the view, they are not of a nature considered a “series of incidents” sufficient to bring the sexual harassment allegations within the limitation period.

17As indicated above, the applicant has sought protection of the Code for interactions which occurred “with respect to employment”. It is the position of the respondent, however, that the applicant was engaged by the respondent as an independent contractor performing piecework drywall installation and finishing and that this relationship is not a social area regulated by the Code.

18In addition, the applicant appears to allege that he experienced discrimination in the social area of “contracts”. The respondent argues that the applicant has failed to provide the necessary particulars as to which, if any, contracts resulted in adverse treatment and how such adverse treatment amounted to discrimination in contravention of the Code.

19I should point out that for the purpose of my analysis respecting delay, I have assumed, without making a specific finding to that effect, that the applicant’s interactions with the respondent occurred with respect to a social area protected by the Code.

20For these reasons, I find that the Application was filed outside the mandatory one-year limitation period required by section 34(1) of the Code and that the applicant has not provided a good faith explanation for his delay in filing his Application as required by section 34(2).

21Accordingly, the Application is dismissed.

22Given that the Application is dismissed on the basis of delay, it is not necessary to deal with the issue of no reasonable prospect of success.