Khoja v. Alliance International Credit Corporation, 2016 HRTO 322

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sadiq Ali Khoja Applicant

-and-

Alliance International Credit Corporation Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: March 11, 2016 Citation: 2016 HRTO 322 Indexed as: Khoja v. Alliance International Credit Corporation

APPEARANCES

Sadiq Ali Khoja, Applicant Self-represented

Alliance International Credit Corporation, Respondent Tom McCausland and Janice Neshevich, Representative

1This is an Application dated October 12, 2014 and filed with the Tribunal on January 6, 2015 alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, disability, creed, gender identity, gender expression, marital status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant was employed as a collections officer with the respondent commencing August 2, 2011. He was on a medical leave of absence from work during the period from November 28, 2012 to December 17, 2012 and again from February 5, 2013 to February 10, 2014. His employment with the respondent was terminated on April 10, 2014. The Application before this Tribunal raises allegations regarding how the applicant was treated during the course of his employment and relating to the termination of his employment.

3The Application consists of 66 pages, much of which is very dense single lined text making sweeping allegations against the respondent, not all of which fall within this Tribunal's jurisdiction, and extensive legal submissions. What is not clear, however, from the Application as filed with this Tribunal is the precise bases upon which the applicant is alleging that his rights under the Code were infringed by the respondent in relation to the various grounds of discrimination alleged.

4As a result, by Case Assessment Direction ("CAD") dated February 26, 2015, this Tribunal directed the applicant to file a three page summary of the allegations he is raising in his Application that he believes represent a violation of his rights under the Code. While the applicant did file a document in response to this CAD, it consists merely of a recitation of various provisions of the Code and general statements about the role of this Tribunal and the remedy the applicant is seeking. This document does not provide the required clarification as to the factual bases upon which the applicant is alleging that his rights under the Code were violated by the respondent.

5Accordingly, by CAD dated August 4, 2015, the Tribunal directed that an in-person preliminary hearing be held to obtain clarification from the applicant as to the specific issues he is raising under the Code before this matter proceeds any further, so that the Tribunal and the respondent could understand and address the specific issues being raised by the applicant.

6The CAD dated August 4, 2015 also directed that the in-person preliminary hearing would address the issue of whether all or part of the Application should be dismissed as having no reasonable prospect of success.

7The in-person preliminary hearing was held before me on December 14, 2015. Prior to the preliminary hearing, I spent a considerable amount of time reviewing the Application and various other materials filed by the applicant in an effort to discern the specific factual bases upon which he was alleging that his Code rights had been infringed by the respondent. I was able to discern seven potential issues under the Code being raised by the applicant in this proceeding, which I shared with the parties at the outset of the preliminary hearing. I also raised with the parties matters upon which I required clarification from the applicant in order to more fully understand the nature of his allegations.

8After reviewing these seven identified issues with the applicant and obtaining the clarification I required, I afforded the applicant an opportunity to raise any other specific allegations he had raised in the Application regarding the violation of his Code rights by the respondent and further afforded him the opportunity to make submissions on the issue of reasonable prospect of success in relation to the issues raised. During the course of clarifying the issues, it became clear that an issue of delay arose in relation to at least some of the allegations raised, and I put the applicant on notice of that issue and afforded him an opportunity to make submissions in response.

9I also heard and considered oral submissions from the respondent, as well as affording the applicant a right of reply.

10Before proceeding to address the issues raised in the Application, I note that in addition to the Application filed with respect to employment, the applicant also filed virtually identical applications against the respondent in the area of goods, services and facilities and in the area of contracts. Given that it is clear that the issues raised in this proceeding fall under the area of employment, I made it clear to the parties at the preliminary hearing that this Tribunal would not be proceeding with the applicant's duplicative applications in these other two areas.

Clarification of issues

11Having reviewed the Application and other materials filed by the applicant, I identified at the preliminary hearing the following allegations of a violation of the applicant's rights under the Code by the respondent.

12Issue (1) was identified as being that sometime after the applicant commenced employment with the respondent on August 2, 2011, he requested accommodation for his disabilities from a Human Resources Officer and these accommodations were not provided to him. At the preliminary hearing, the applicant clarified that the only specific request for disability accommodation he had made while employed by the respondent was in January 2013, which is raised as Issue (3) below. Accordingly, Issue (1) is no longer a separate issue in this proceeding.

13Issue (2) was identified as being that on October 31, 2012, the applicant agreed to enroll and participate in an MTCU training program and was provided by the respondent with an initial incentive payment of $250, but was unable to continue in the program due to his absence from work and hospitalization during the period from November 28 to December 17, 2012. At the preliminary hearing, I noted that if the applicant is alleging that his inability to continue in this program constitutes a violation of his rights under the Code by the respondent, it was unclear to me the basis upon which he is making this allegation.

14Issue (3) was identified as being that in early January 2013, following his return to work in December 2012, the applicant requested accommodation from a Human Resources Officer and was told that accommodation was not required. I indicated at the preliminary hearing that it was not clear to me what accommodations the applicant requested at that time or whether he provided any medical documentation to support any such request.

15Issue (4) was identified as being that when he returned to work on February 10, 2014 following an extended leave of absence, the applicant alleges that he was put as a new employee in the respondent's payroll system. I indicated at the preliminary hearing that it was not clear to me what the applicant meant by this, given that it is clear that in paying the applicant's termination pay under the Employment Standards Act upon the termination of his employment in April 2014, the respondent had regard to the applicant's full tenure of employment from August 2, 2011.

16Issue (5) was identified as arising from the termination of the applicant's employment by the respondent on April 10, 2014. I indicated at the preliminary hearing that I understood that the applicant is alleging discrimination because of disability in relation to the termination of his employment on the basis that he told his manager that he has bipolar disorder at some point prior to termination, and that the respondent failed to take reasonable steps to inquire into his mental health issues in terms of whether they were affecting his ability to perform his duties. I also indicated that I understood that the applicant is alleging reprisal on the basis that the respondent became aware that he had initiated a prior human rights application against the respondent's disability insurer Standard Life prior to his termination, and it is alleged that this also was a factor in the termination of his employment. I indicated that it was not clear to me if the applicant is alleging discrimination regarding the termination of his employment on any other grounds, and if so, what is the basis for any such allegation.

17Issue (6) was identified as being that the applicant was harassed in the workplace because of his race, colour, ancestry, place of origin and/or ethnic origin by a former employee of the respondent, who is alleged to have made fun of the way the applicant speaks and his accent among other things. The applicant acknowledged in materials filed with the Tribunal and at the preliminary hearing that he did not report this conduct to Human Resources or management at the respondent. I indicated at the preliminary hearing that it was not clear to me specifically when this conduct is alleged to have taken place, or whether there is any basis upon which the applicant is alleging that the respondent reasonably ought to have been aware of this co-worker's alleged conduct.

18Issue (7) was identified as being that the applicant was not promoted from his position as Collections Officer during the period of his employment with the respondent. I indicated at the preliminary hearing that I understood that the applicant is alleging that this amounts to discrimination because of sex on the basis that the respondent gives preference to female employees for promotion. I noted that in his Application, the applicant had checked off the grounds of gender identity and gender expression as opposed to sex, and indicated that if the applicant is simply saying that female employees were given preference over male employees, then the proper ground is sex. I further indicated that I also understood that the applicant is alleging discrimination in relation to not being promoted on the basis of race, colour, ancestry, place of origin, ethnic origin and/or creed, but noted that it was not clear to me what the basis for these allegations are.

19With regard to Issue (7), I further indicated at the preliminary hearing that it was not clear to me what time period the applicant is saying that he was denied a promotion. I noted that the applicant was at work from August 2, 2011 to November 28, 2012, then returned to work only briefly from December 17, 2012 to February 5, 2013, and then again was only at work for a brief period from February 10, 2014 until his termination on April 10, 2014. As a result, I indicated at the preliminary hearing that it was not clear to me whether the applicant is alleging that he was denied a promotion during the two brief periods of time that he returned to work following medical absences, or whether this allegation relates to the time period prior to his first medical leave of absence.

20With regard to the allegation of discrimination because of marital status, I indicated at the preliminary hearing that my understanding was that this allegation is being raised on the basis that the applicant was left by his spouse following the termination of his employment. I noted that this is more properly regarded as a consequence of alleged discrimination, rather than a basis for alleging that the respondent discriminated against the applicant because of marital status. At the preliminary hearing, the applicant agreed with this characterization of his allegation of marital status discrimination. As a result, there is no proper basis in this proceeding to support an allegation of discrimination because of marital status, and that ground is struck from the Application.

21After identifying these specific issues of discrimination raised in the Application, I afforded the applicant an opportunity to indicate whether there were any further allegations of a violation of his Code rights by the respondent apart from the issues already identified. While the applicant did make general allegations that the respondent did not cultivate equity, did not adhere to its own standards and did not afford him equal opportunity, these do not constitute any additional specific factual bases upon which the respondent is alleged to have violated the applicant's rights under the Code.

22The only other specific allegation raised by the applicant at the preliminary hearing is that certain unidentified people employed by the respondent were not respectful to him and discriminated against and racialized him. I indicated that I had reviewed the Application very carefully, and the only allegations of racialized conduct raised in the Application related to the co-worker identified in Issue (6) above. In response, the applicant alluded to some unspecified incidents in the hallways where he alleges he was not treated properly but stated that he did not want to raise these incidents with Human Resources so he just stayed away from it. Apart from the matters already raised as Issue (6) above, there is no other specific allegation of racialized treatment raised in the Application. Accordingly, this is not an additional issue raised in this proceeding that will be addressed in this Interim Decision.

Reasonable prospect of success

23Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

24Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

25The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is based, at least in part, on the applicant's race, place of origin, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

26There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case, the Tribunal decided to hold a summary hearing to determine, among other things, whether the applicant has a reasonable prospect of proving that there is a connection between what the respondent is alleged to have done, and the grounds of race, colour, ancestry, place of origin, ethnic origin, sex, disability and reprisal cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to the ground, the issue is whether there is evidence available to the applicant to prove the connection.

27As indicated above, after clarifying the issues raised in this proceeding, it became clear that an issue of delay arises with respect to at least some of the applicant's allegations. The delay issue was raised with the applicant at the hearing and he was given the opportunity to make submissions in relation to this issue. Accordingly, I also will address whether some of the issues raised in this proceeding should be dismissed on the basis of delay.

28With regard to Issue (1), and as stated above, there is no accommodation issue separate from Issue (3). So I will not be addressing Issue (1) further.

29With regard to Issue (2), this is the allegation that on October 31, 2012, the applicant agreed to enroll and participate in an MTCU training program and was provided by the respondent with an initial incentive payment of $250, but was unable to continue in the program due to his absence from work and hospitalization during the period from November 28 to December 17, 2012. The applicant stated at the preliminary hearing that this allegation is premised on the notion that an employer is required to provide its employees with training. Whether or not that is the case, that is not an issue that falls under the jurisdiction of the Code. The issue for this Tribunal is whether and how the applicant is alleging that his inability to complete the program due to his medical leave amounts to discrimination by the respondent in violation of the Code.

30The applicant stated at the preliminary hearing that he tried to re-enroll in the program after his return to work in February 2014. He states that he spoke to an employee in Human Resources and she worked very hard to get him back into the program, which he re-entered on March 18, 2014. However, the applicant was not able to complete the program because his employment was terminated shortly thereafter. In my view, the issue regarding the applicant's inability to complete this program due to his termination is not in itself an incident of alleged discrimination, but rather is a consequence of the termination of his employment.

31At the end of the day, the applicant was enrolled in the program but initially was unable to complete the program due to his first medical leave of absence. After his first medical leave of absence, the applicant only returned to work for a very brief period of seven weeks before going off again on a second lengthy medical leave of absence. Following his return to work in February 2014, the respondent on the applicant's own admission worked very hard to get him back into the program and was successful in doing so. As stated above, the fact that the applicant was unable to complete the program due to the termination of his employment in April 2014 is not an incident of discrimination in relation to the training program, but rather is a consequence of the termination of his employment. Accordingly, in my view, the allegation described as Issue (2) has no reasonable prospect of success.

32With regard to Issue (3), this is the allegation that in early January 2013, following his return to work in December 2012, the applicant requested accommodation from a Human Resources Officer and was told that accommodation was not required. At the preliminary hearing, the applicant states that he was having certain physical problems and that he also needed accommodation due to his mental health issues. He states that he needed a special chair that would help reduce his physical pain, as well as a separate room with a computer and printer so that he could concentrate and produce more. He also states that he needed job coaching, job shadowing and a shift to another department.

33The applicant acknowledged that he did not provide the respondent with any medical documentation at that time in support of his request for accommodation. At the preliminary hearing, the applicant referenced a medical report from July 2015 in relation to his physical issues, which indicated that this is due to an old injury. With regard to the accommodations he says he required for his mental health issues, the applicant states that this was based on similar accommodations provided for him when he was in college. However, the applicant acknowledged that he did not have any medical documentation from the relevant period to support that he required these specific accommodations as of January 2013.

34The applicant stated at the preliminary hearing that when he spoke with the Human Resources Officer and told her that he needed accommodation, she said that he did not need accommodation, that she was very busy, that the applicant should go back to his work station, and then shut the door on him. The applicant states that the Human Resources Officer did not let him speak at all and was very stubborn. He states that he made every effort to tell her that he needed accommodation, but was not able to get into specifics because she was not listening.

35The applicant acknowledged at the preliminary hearing that he did not make any further request for accommodation during the period from early January 2013 until he went off work again in February 2013. In relation to his return to work in February 2014, there is documentation filed with the Tribunal to indicate that specific accommodations were requested at that time, particularly with regard to the applicant's hours of work, and that these accommodations were provided by the respondent and agreed to by the applicant.

36Apart from that, from the time the applicant went back to work on February 10, 2014 until he was terminated on April 10, 2014, there is no indication that the applicant made any further request for accommodation.

37As a result, Issue (3) raises an issue that the applicant's request for accommodation in early January 2013 was not appropriately addressed by the respondent. This alleged incident occurred some two years prior to the filing of the Application, and as such is well beyond the one year period for raising an incident of discrimination as set out in s. 34(1) of the Code. I will address the delay issue at a later point in this Interim Decision.

38With regard to Issue (4), this is the allegation that when he returned to work on February 10, 2014 following an extended leave of absence, the applicant alleges that he was put as a new employee in the respondent's payroll system. When asked about this at the preliminary hearing, the applicant stated that when he returned to work, he was regarded as a probationary employee. However, he acknowledged that no-one said this to him and he did not receive anything in writing to this effect. As noted above, when the applicant was paid his termination pay, the respondent clearly did not treat him as a probationary employee but paid him on the basis of his full term of service. In addition to never being told orally or in writing that he was now a probationary employee upon his return from his second medical leave, the applicant also has not identified an adverse consequence that he is alleged to have suffered as a consequence of this alleged status. In these circumstances, in my view, this allegation has no reasonable prospect of success.

39With regard to Issue (5), I will first address the applicant's allegation that he experienced discrimination because of disability in relation to the termination of his employment on the basis that he told his manager that he has bipolar disorder at some point prior to termination, and that the respondent failed to take reasonable steps to inquire into his mental health issues in terms of whether they were affecting his ability to perform his duties.

40In its Response, the respondent did not address the specific reasons for its decision to terminate the applicant's employment. At the preliminary hearing, the respondent stated that it decided to terminate the applicant because his work performance was not adequate and because he was not meeting his targets. However, I note that at the time of the termination of the applicant's employment, the applicant had only been back to work from a year-long medical absence for two months. I also note the applicant's statement at the preliminary hearing that he had informed his manager about his bipolar disorder in January 2013, and that he had also requested disability-related accommodation at that time.

41In these circumstances, in my view, I am unable to say that the applicant's allegation that he experienced discrimination because of disability in relation to the termination of his employment by the respondent has no reasonable prospect of success. This is an issue that warrants determination on the basis of an assessment of all of the relevant evidence at a full hearing. In this case, the issues to be determined will include: whether the respondent discriminated against the applicant directly on the basis that either his bipolar disorder, his request for disability-related accommodation or his medical leave(s) were a factor in the decision to terminate his employment; whether the applicant's disability affected his work performance and whether the respondent indirectly discriminated against him because of disability either by failing to take this into account or by deciding to terminate his employment so soon after his return from medical leave; whether the circumstances in the workplace triggered a "duty to inquire" on the respondent's part to actively look into the potential impact of the applicant's disability on his work performance; and whether the respondent has a credible, non-discriminatory explanation for its termination decision.

42The next aspect of Issue (5) is the applicant's allegation of reprisal on the basis that the respondent became aware that he had initiated a prior human rights application against the respondent's disability insurer Standard Life prior to his termination, and that this also was a factor in the termination of his employment. In this regard, while the applicant expressed his belief that the respondent was aware of the Standard Life application, he acknowledged at the preliminary hearing that no-one working for the respondent had indicated to him that they were aware of this prior application, and he could point to no evidence beyond his own speculation that the respondent was aware of the prior application. In my view, this aspect of Issue (5) is based entirely upon a bare allegation supported only by the applicant's speculation, and thus has no reasonable prospect of success.

43As indicated above, at the preliminary hearing I asked the applicant whether he was alleging discrimination in relation to the termination of his employment on the basis of any other ground cited in the Application, and if so, what was the basis for any such allegation. In response, the applicant stated that he was also alleging that his race, colour, ancestry, place of origin, ethnic origin and/or creed was a factor in the termination of his employment. He stated that the basis for this allegation is that he was stymied in his attempts to obtain a promotion at the respondent, and he pointed to two female employees who were not terminated, one of whom he states is Dutch and the other Chinese. He also made reference to a third employee whom the applicant identified as British and who left employment with the respondent, but later asked if he could come back to work for the respondent and was allowed to do so. The applicant also stated that he was alleging discrimination because of sex, on the basis of the two female employees whose employment was not terminated.

44In my view, this is insufficient to establish that the applicant's allegations of racial and/or sex discrimination in relation to the termination of his employment have a reasonable prospect of success. The respondent is a fairly large company, and there are many employees who were not terminated and could be pointed to. The fact that two female employees of different origins did not have their employment terminated and that another former employee of a different origin was allowed to come back says little about whether the applicant's own origin or his gender was a factor in the decision to terminate his employment. The issue of the applicant not being promoted will be addressed under Issue (7) below. But at the end of the day, in my view, the applicant has failed to establish that he has a reasonable prospect of success in proving that his race, colour, ancestry, place of origin, ethnic origin and/or creed or his sex was a factor in the termination of his employment.

45At the preliminary hearing, the applicant further alleged that his age was a factor in the decision to terminate his employment. The applicant did not identify age as a ground of discrimination in the Application as filed with this Tribunal, and his Application and the voluminous materials he has filed in support of his Application provide no basis to support any such allegation. Accordingly, I will not consider this allegation further.

46With regard to Issue (6), this is the allegation that the applicant was harassed in the workplace because of his race, colour, ancestry, place of origin and/or ethnic origin by a former employee of the respondent, who is alleged to have made fun of the way the applicant speaks and his accent among other things. At the preliminary hearing, the applicant was unable to indicate when specifically this conduct is alleged to have occurred. He stated that the former employee alleged to have been responsible for this conduct only worked for the respondent for a short period of time, approximately two or three months. He also stated that this former employee was not still employed by the respondent when he returned to work in February 2014.

47Accordingly, the latest that this conduct could have occurred would be in early February 2013, prior to the applicant's second medical leave. This is almost two years prior to when the Application was filed, and as such is well beyond the one year period for raising an incident of discrimination as set out in s. 34(1) of the Code. As with Issue (3), I will address the delay issue at a later point in this Interim Decision.

48With regard to Issue (7), this is the allegation arising from the fact that the applicant was not promoted from his position as collections officer during the period of his employment with the respondent, which the applicant alleges to be discrimination because of his sex and also because of his race, colour, ancestry, place of origin, ethnic origin and/or creed.

49At the preliminary hearing, I asked the applicant to clarify the time period when he alleges he was denied a promotion. He stated that it started when he was enrolled in the MCTU training program. He stated that as part of this program, he completed a Career Planning Template in December 2012 and passed this document on to one of the instructors in January 2013. He stated that he actively pursued the issue of a promotion with management in January 2013, but was told this was not possible. When asked whether he had initiated any discussions about possible promotion following his return to work in February 2014, the applicant confirmed that he had not done so.

50As a result, the latest time when the issue of being denied a promotion or discouraged from pursuing promotion arose was in January 2013, which is two years prior to the filing of the Application and well beyond the one year period for raising an incident of discrimination. Accordingly, this issue will be addressed in the context of delay, along with Issues (3) and (6).

Delay

51Section 34(1) and (2) of the Code state:

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 incidents to which the application relates; or

(b) if there was 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.

52If, as in the instant case, there is an incident of an alleged violation of the Code within the one year period, but other incidents of alleged violations that are outside the one year period, then this Tribunal needs to consider whether the untimely alleged incidents form part of a "series of incidents" that extends to and includes the timely alleged incident, within the meaning of s. 34(1)(b) of the Code.

53In determining whether prior alleged incidents form part of a "series of incidents", the Tribunal considers the following factors:

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?

See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30.

54With regard to factor (c), when assessing whether the 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. In Pakarian v. Chen, 2010 HRTO 457, the Tribunal defined the word "series" as "a number of things or events of the same class coming one after another in spatial or temporal succession". 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.

55The timely alleged incident of discrimination that has not been dismissed as having no reasonable prospect of success is the aspect of Issue (5) whereby the applicant alleges that his disability, whether directly or indirectly, was a factor in the respondent's decision to terminate his employment. In contrast, Issue (6) is an allegation of racial harassment by a co-worker. In my view, this latter alleged incident of discrimination is of an entirely different nature and character than the timely allegation, and as such is incapable of forming part of a series of incidents that extends to and includes the timely allegation. Similarly, Issue (7) is an allegation of discrimination because of sex and of race and related grounds in relation to the denial of a promotion. Once again, this latter allegation is an allegation of discrimination on an entirely different ground and in an entirely different context, and also is incapable of forming part of a series of incidents with the timely allegation.

56Issue (3) is the alleged denial of disability-related accommodation. I appreciate that the applicant's alleged request for accommodation in early January 2013 and the Human Resources Officer's alleged response to this request may be relied upon by the applicant as pieces of circumstantial evidence in support of his allegation that disability was a factor in the decision to terminate his employment. However, that is a different question than whether the alleged denial of accommodation in January 2013 forms part of a series of incidents that extends to and includes the termination of his employment in April 2014, some 15 months later, such that this Tribunal would be called upon to make a ruling as to whether the alleged denial of accommodation in January 2013 in and of itself was a violation of the applicant's rights under the Code.

57In my view, the alleged denial of accommodation and the issue of the termination of the applicant's employment are both of a sufficiently different character and so separated in time as to prevent these two allegations from being regarded as a "series of incidents" within the meaning of s. 34(1)(b). This Tribunal has held that a gap of more than one year between alleged incidents, while not a hard and fast rule, generally will be considered to interrupt the series: see Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225; Christie v. Trent University, 2013 HRTO 952. In my view, the fact that the allegation of a denial of accommodation is of a different character than the allegation arising from the termination of employment, when combined with the gap of 15 months between these two alleged incidents of discrimination, means they cannot be regarded as a series of incidents.

58Accordingly, I find that Issues (3), (6) and (7) are untimely. As a result, I next need to consider whether the delay in bringing these allegations forward was incurred in good faith within the meaning of s. 34(2) of the Code. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

59In my view, the applicant has not provided a reasonable explanation for the delay in raising these allegations before this Tribunal. I appreciate that the applicant was on an extended disability leave from February 2013 to February 2014. However, during this period of time, he was nonetheless capable of filing a human rights application against the long-term disability insurer, Standard Life, on February 21, 2014. Even though the Standard Life application was filed on the applicant's behalf by his father, this nonetheless shows that the applicant was capable at that time of asserting his rights under the Code. Further, the applicant had returned to work by February 10, 2014 and would have been capable to asserting his Code rights during the period at the very least up until the time of his dismissal on April 10, 2014. Finally, while I appreciate that the applicant has experienced significant mental health issues since the termination of his employment and was hospitalized for three weeks in October and November 2014, this does not sufficiently explain his failure to raise the untimely allegations at an earlier point in time.

60As a result, I find that the applicant has not provided a reasonable explanation for the delay in raising the allegations described as Issues (3), (6) and (7), such that the delay in raising these allegations cannot be regarded as having been incurred in good faith. Accordingly, these allegations are dismissed due to delay.

Next steps

61As a result of this Interim Decision, the one remaining issue that is proceeding before this Tribunal is the applicant's allegation that the termination of his employment on April 10, 2014 constitutes discrimination with respect to employment because of disability in violation of s. 5 of the Code. As noted above, the Response did not provide a specific explanation for the decision to terminate the applicant's employment or describe the events from the respondent's perspective that led up to this decision or who was involved in making this decision. In my view, the respondent should be afforded an opportunity to do so before this matter proceeds further. The respondent shall do so by preparing a document entitled Schedule "A" to the Response which sets out all material facts upon which the respondent relies in response to the remaining allegation in this proceeding. This is to be served on the applicant and filed with the Tribunal within 35 calendar days of the date of this Interim Decision.

62The applicant shall have a further 14 calendar days to serve and file a fresh Reply to the Schedule "A" filed by the respondent. This Reply should set out only the material facts relied upon by the applicant in response to any specific statements made by the respondent in its Schedule "A" with which the applicant disagrees or has a different version of events, and shall not include legal argument or citation of authorities or matters irrelevant to the one remaining allegation.

63I note that in the Application as filed with the Tribunal, the applicant has not agreed to mediation. Accordingly, this matter shall be placed in the Tribunal's hearing queue to be scheduled for a hearing. The parties should expect to receive a Notice of Hearing from the Tribunal after the parties have filed the materials described above.

64The applicant is reminded that, apart from filing his Reply in the form indicated above, he is not to serve on the respondent or file with the Tribunal any other extraneous materials. Unless the applicant is making a specific request to the Tribunal for some specific order he is asking the Tribunal to make (which would be done by serving and filing a Form 10), the next materials that the applicant (as well as the respondent) should be filing with the Tribunal are their witness statements and the documents upon which they intend to rely at the hearing, which are due 45 days prior to the first scheduled date of hearing.

ORDER

65For all of the foregoing reasons, I hereby make the following order:

a. The applicant's allegation that the termination of his employment on April 10, 2014 constitutes discrimination with respect to employment because of disability in violation of s. 5 of the Code will proceed further in the Tribunal's process;

b. All other allegations raised in the Application are dismissed as having no reasonable prospect of success and/or due to delay;

c. Within 35 calendar days of the date of this Interim Decision, the respondent shall serve on the applicant and file with the Tribunal a document entitled Schedule "A" to the Response which sets out all material facts upon which the respondent relies in response to the remaining allegation in this proceeding; and

d. Within a further 14 calendar days, the applicant shall serve and file a fresh Reply setting out only the material facts relied upon by the applicant in response to any specific statements made by the respondent in its Schedule "A" with which the applicant disagrees or has a different version of events, and which shall not include legal argument or citation of authorities or matters irrelevant to the one remaining allegation.