Masters v. Crawford Metal Corporation, 2016 HRTO 225

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Masters

Applicant

-and-

Crawford Metal Corporation

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 22, 2016

Citation: 2016 HRTO 225

Indexed as: Masters v. Crawford Metal Corporation

WRITTEN SUBMISSIONS

Elaine Masters, Applicant

Andrew Haber, Counsel

Crawford Metal Corporation, Respondent

Wade Poziomka, Counsel

1This is an Application filed with the Tribunal on May 6, 2015, alleging discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the respondent’s Request for Order dated December 17, 2015 seeking dismissal of the Application for delay. The applicant filed her Response to Request for Order on December 24, 2015. While the respondent has asked that its request be addressed via a conference call, in my view this is unnecessary and the issue can be appropriately determined on the basis of the parties’ written submissions.

3The respondent submits that the Application is premised on four alleged discriminatory incidents:

a. That she was demoted from Controller to Credit Manager, which occurred in 2008 some seven years before the Application was filed;

b. That she was denied a performance bonus on an ongoing basis commencing in 2008;

c. That she was denied a cost of living increase at a performance review meeting that the respondent says occurred on May 5, 2014, one year and one day before the Application was filed; and

d. That her job duties were reduced and there was a new reporting structure.

4There does not appear to be any real dispute between the parties that these are the main issues raised in the Application. There does however appear to be a dispute as to the time period to which issue (d) above relates as well as the date of the performance review meeting in May 2015.

5With regard to issue (d), the respondent submits that this issue hearkens back to the applicant’s alleged demotion in 2008 and is therefore untimely. The respondent submits that the only incident that is alleged to have occurred within the one-year period prior to the filing of the Application is an alleged incident on November 19, 2014, when the applicant was told that if she did not complete stuffing envelopes by 5:00 p.m. that day, she should not bother coming to work the next day.

6This in my view does not accurately reflect the nature of issue (d) as set out in the Application. Issue (d) refers to the time period from September 2014 onward when the applicant alleges that the respondent: hired a new Credit Administrator who was paid at a higher rate than the other Credit Administrators; made changes to her role and responsibilities that she alleges were in an attempt to marginalize her and force her to resign; told her to “back away” from daily credit functions; and changed the reporting structure so that the Credit Administrators no longer reported to her. These allegations are either disputed or explained by the respondent in its Response and will undoubtedly be the subject of evidence at the hearing. At this stage, however, it is clear in my view that issue (d) pertains to a period of time that is well within the one-year period prior to the filing of the Application and is therefore timely.

7With regard to issue (c), while there is no dispute that the applicant alleges she was told at her performance review meeting in May 2015 that she would not receive a cost of living increase, there is a dispute between the parties as to precisely when this meeting occurred. The respondent states that it occurred on May 5, 2014, one year and one day before the Application was filed, while the applicant states that it occurred on May 12, 2014, less than one year before the Application was filed. The applicant states that immediately following her performance review meeting, she phoned the respondent’s Chief Financial Officer (“CFO”) to ask the respondent to re-consider its position regarding a cost of living increase. She states that she was told by the CFO that he would look into the matter and was asked to put her request in writing, which she did by e-mail dated May 13, 2014, a copy of which was provided with the applicant’s submissions in response to the Request for Order. The applicant states that it was not until the following work week, on or about May 21, 2014, that the CFO approached the applicant and confirmed that the respondent’s decision to deny her a cost of living increase was final. In my view, whether or not the performance review meeting was held on May 5, 2014, this alleged discriminatory incident extends into the period within one year of when the Application was filed and is therefore timely.

8With regard to issue (b), the applicant alleges that she was first denied a performance bonus in 2008 and thereafter was denied a performance bonus in each subsequent year of her employment with the respondent. The respondent characterizes this as an alleged discriminatory incident that occurred in 2008, with only the continuing effect of this alleged incident being carried over into subsequent years. I agree with the applicant that this is not consistent with the respondent’s own position as stated in its Response, in which it states that performance bonuses were reviewed yearly. Neither party alleges that in 2008, the respondent advised the applicant that from that point onward it was permanently discontinuing any consideration of her for a performance bonus. Rather, the allegation is that the applicant was denied a performance bonus each year from 2008 onward for discriminatory reasons related to her age. As the issue of the performance bonus was last addressed at the performance review meeting in May 2015 and was not a matter that the applicant raised with the CFO or that appears to have received any subsequent consideration by the respondent, this issue does raise the question as to whether the last incident of denial of a performance bonus occurred on May 5, 2014 or May 12, 2014. In my view, given the dispute between the parties on this point, this is a matter for evidence at the hearing.

9With regard to the applicant’s allegation about having been denied a performance bonus in previous years dating back to 2008, if the last denial of a performance bonus in fact occurred within the one-year period, then it is my view that the prior denials would constitute a “series of incidents” within the meaning of s. 34(1)(b) of the Code as matters of a similar nature and character.

10With regard to issue (a), there is no dispute that the alleged demotion of the applicant occurred in 2008, some seven years before the Application was filed. The applicant submits that this alleged incident of discrimination should be considered to form part of a “series of incidents” that extends to and includes one of the timely allegations. When assessing whether allegations relate to a “series of incidents”, the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus: see, for example, Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”: see Pakarian v. Chen, 2010 HRTO 457. A “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances: see Twyne v. Dominion Colour Corporation, 2013 HRTO 1769.

11Another factor considered by this Tribunal in determining whether an untimely alleged incident of discrimination forms part of a “series of incidents” that extends to and includes a timely allegation is the temporal gap between the alleged incidents. This Tribunal has held that a gap of more than one year between alleged incidents generally will be considered to interrupt the series: see for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. This should not be regarded as a rigid rule: Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927. However, where there is a significant gap between alleged incidents, this Tribunal nonetheless will find that the series is broken: Christie v. Trent University, 2013 HRTO 952.

12In terms of the nature of the alleged demotion, the timely incident with which it appears to have the closest resemblance is the allegation regarding reduction in her job duties from September 2014 onward, which occurred some six years later. In my view, that is the kind of significant temporal gap that prevents these incidents from properly being regarded as forming a “series”. The same can be said with regard to the denial of a cost of living increase in May 2014, which I also observe is of an entirely different nature and character than the alleged demotion.

13While I appreciate that the allegation of the denial of performance bonuses, if that allegation ultimately turns out to be timely, extends back to 2008, in my view that allegation is of a sufficiently different nature and character than the alleged demotion that it cannot properly be regarded as a basis to support that the alleged demotion in 2008 forms part of a series of incidents that extends to and includes a timely allegation.

14The applicant did not make any submissions to explain her delay in raising her allegation about the demotion in 2008. As a result, there is no basis to find that the delay in raising this allegation was incurred in “good faith” within the meaning of s. 34(2) of the Code: see Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

15Accordingly, the allegation regarding the applicant’s demotion in 2008, identified as issue (a) above, is dismissed for delay.

ORDER

16For all of the foregoing reasons, I hereby make the following order:

a. The allegation regarding the applicant’s demotion in 2008, identified in para. 3 above as issue (a), is dismissed for delay;

b. The respondent’s request for dismissal of the Application in whole or in part for delay is otherwise denied, subject to the respondent’s ability to re-raise a timeliness issue in relation to issue (b) as identified in para. 3 above on the basis of the evidence led at the hearing.