Human Rights Tribunal of Ontario
B E T W E E N:
Carah Mitchell Applicant
-and-
City of Toronto Respondent
INTERIM DECISION
Adjudicator: Keith Brennenstuhl Date: November 24, 2016 Citation: 2016 HRTO 1500 Indexed as: Mitchell v. Toronto (City)
APPEARANCES
Carah Mitchell, Applicant Olanyi Parsons, Counsel
City of Toronto, Respondent Amandi Esonwanne, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of creed and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application was filed on October 2, 2015.
2The purpose of this Decision is to address the request by the respondent (the "City") to dismiss the Application for delay.
Background and Parties' Position
3The applicant was a Caseworker in the City's Employment and Social Services Division between June 2013 and October 27, 2014 when she resigned her employment. In her Application the applicant alleges that she was subjected to harassment in the workplace on the basis of creed and that the respondent failed to accommodate her disability.
4The applicant alleges that between February 2014 and August 2014 she was subjected to inappropriate behaviours and comments in the workplace based on the prohibited ground of creed and that between March 2014 and August 2014 she complained to management about the impugned actions.
5On August 19, 2014 the applicant commenced a medical leave of absence allegedly as a result of being subjected to ongoing harassment.
6On or about August 28, 2014 the applicant sought accommodation for her medical condition in the form of being transferred to a less stressful work location.
7On September 3, 2014, the City agreed to assign the applicant to a new work location, namely the Yonge-Eglinton location, when she returned to work from her medical leave. Apparently, the applicant did not consider this location to be suitable and on September 9, 2014 she requested that she be assigned to the Chesswood office. On September 11, 2014 the City responded and confirmed that her new location remained the Yonge-Eglinton office.
8According to the applicant, between September 11, 2014 and October 7, 2014, she continued to engage in discussions with the City in an attempt to obtain suitable accommodation. Allegedly, the City failed to provide her with the accommodation sought.
9On October 14, 2014 the applicant tendered her resignation effective October 27, 2014, allegedly because the City failed to provide a workplace free of harassment and because it failed to accommodate her disability to the point of undue hardship.
10On October 2, 2015 the applicant filed this Application.
Analysis and Decision
11The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:
34(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.
12The applicant takes the position that the allegations relating to harassment based on creed form a series of incidents, and that the Application was filed in a timely manner after the last incident. In particular, the applicant submits that as a result of the harassment she was subjected to between March 2014 and August 2014, she sought accommodation from the City after having commenced a medical leave of absence.
13The applicant submits that there is a clear connection between the allegations relating to harassment based on creed and her request for accommodation. Specifically, the applicant attempted to deal with the harassment by way of filing complaints with management, and when those complaints were handled unsatisfactorily, she sought accommodation.
14Accordingly, the applicant submits that her allegations in respect of harassment based on creed and her accommodation request were sufficiently related in nature and that the timing of the events were in close proximity so as to establish a series of incidents, and that the Application was filed in a timely manner after the last incident in the series.
15The applicant takes the position that the City had both a procedural and substantive duty to accommodate the applicant to the point of undue hardship. In furtherance of the City's procedural duty to accommodate, the applicant allegedly engaged in ongoing discussions with the City between August 2014 and October 7, 2014 in an attempt to obtain suitable accommodation. The applicant therefore submits that her attempts to obtain accommodation are part of a series of incidents and that the Application was filed within one year of the last incident.
16The City submits that the alleged failure to accommodate is not part of a series of incidents in that it is of a distinct and separate nature involving a distinct ground in the Code; however, if it is determined to be part of a series of incidents, it submits that the decision to accommodate the applicant by moving her to the Yonge-Eglinton office was made on September 3, 2014 and confirmed on September 11, 2014. The City submits that subsequent to September 11, 2014, the Applicant only experienced the effect or consequence of the City's decision regarding her request for a transfer to the Chesswood office and that the continuing effects or consequences of an alleged act of discrimination is not, in itself, an incident upon which discrimination can be based. Therefore an application related to the accommodation issue ought to have been filed no later than September 11, 2015.
17In my view, the applicant's allegations in respect of harassment based on creed and her accommodation request were sufficiently related in nature and that the timing of events were in close proximity so as to establish a series of incidents.
18I agree that there is a procedural aspect to the duty to accommodate. The City argues that that process ended no later than September 11, 2014 when it confirmed that the applicant would be moved to the Yonge-Eglinton office and not the Chesswood location. In my view, the basis for this argument is undermined by the City's own Response.
19In the narrative of its Response the City states:
On September 10, 2014, the Applicant had sent an email to [the City] in which she stated that she would contact the Union to assist her "in transferring to a new location and help her negotiate this." The City acknowledged this on September 11, 2014 and offered to set up a meeting with the Applicant on the phone or in person (with her Union representative) to discuss any concerns she had about the temporary transfer to the Yonge-Eglinton office. The Applicant responded to [the City's] email the same day with more questions about the Yonge-Eglinton Office. The [City] responded on September 15, 2014 and suggested a meeting with the Applicant and her Union representative. The meeting between the Applicant, her Union and [the City] occurred on October 7, 2014, when [the City] explained that the assignment to the Yonge-Eglinton Office was temporary.
20From this passage, I would have to conclude that, in fact, discussions about the applicant's proposed accommodation were ongoing as late as October 7, 2014. In other words, the procedural aspect of the duty to accommodate was still in progress at that time and for the first time the Union was involved in those discussions.
21In my view, the applicant's attempts to obtain accommodation are part of a series of incidents ending October 7, 2014 and that the Application was filed within one year of the last incident.
22I find that the Application is timely. It will continue in the Tribunal's process.
23As the parties have previously expressed an interest in mediation, the Registrar is requested to schedule a mediation session.
Dated at Toronto, this 24th day of November, 2016.
"Signed By"
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Keith Brennenstuhl Vice-chair