HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gregory Harris-Saunders
Applicant
-and-
City of Toronto, Rob Gillis, Danny Fieldhouse,
Ron MacDonald, and Huntley Cowie
Respondents
-and-
Toronto Civic Employees Union, Local 416
Intervenor
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Harris-Saunders v. Toronto (City)
WRITTEN SUBMISSIONS
Gregory Harris-Saunders, Applicant
Self-represented
City of Toronto, Rob Gillis, Danny Fieldhouse, Ron MacDonald and Huntley Cowie, Respondents
Kerri Kitchura, Counsel
Toronto Civic Employees Union, Local 416, Intervenor
Gavin Leeb, Counsel
Introduction
1The applicant filed an Application on August 7, 2015, alleging discrimination in employment because of a disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application contains allegations relating to incidents that took place between May 2013 and August 22, 2014.
2On November 2, 2015, the respondents filed a Request for an Order During Proceedings (“RFOP”) requesting the dismissal of the four allegations in the Application that refer to events prior to August 7, 2014, because they have not been filed in accordance with the time limits set out under s. 34(1)(a) of the Code and are not part of a “series of incidents” under s. 34(1)(a) (“request to dismiss for delay”).
3The respondents further request a summary hearing on the question of whether the remainder of the Application should be dismissed because there is no reasonable prospect that the allegations related to the August 22, 2014 event will succeed.
4On February 17, 2016, the applicant filed his Response to the RFOP.
5This Interim Decision addresses the request to dismiss for delay and the request for summary hearing.
BACKGROUND
Work Selection Process
6It is undisputed that the applicant was a temporary, seasonal “Work Selection” employee who was hired on fixed-term contracts during the organizational respondent’s (“City”) Work Selection Process (“WSP”). The WSP begins each year in September when the City’s various divisions begin identifying specific positions for the upcoming year. In February and March of each year, temporary employees who are represented by Toronto Civic Employees’ Union, Local 416 (“Local 416”), including the applicant, participate in the annual WSP to choose their assignments and be selected for temporary seasonal contracts for the pending year.
7In the Response, the respondents note that the applicant attended the 2013 WSP on or about February 28, 2013 and was selected for the position of Water Maintenance Worker 3, under the supervision of the personal respondents MacDonald (“R.M.”) and Cowie (“H.C.”), both supervisors in the District Operations Section, Toronto Water Division. The contract started on April 17, 2013, and ended of October 22, 2013. The applicant sustained a work injury to his back on or around June 12, 2013, but remained in this position until the end of his contract.
8The Response further indicates that the applicant attended the 2014 WSP on or about March 3, 2014. The applicant selected the Labourer 2 classification in the Parks section of the Parks, Forestry and Recreation Division. The applicant’s 2014 contract was to start on April 23, 2014, and end on September 16, 2014.
9The Response notes that all temporary employees who are represented by Local 416 are provided with a Personal Work Selection List. The Personal Work Selection List lists the classifications that an employee is qualified to perform. A temporary employee is only eligible to select an assignment if it is at the same classification as positions on the Personal Work Selection List. Despite the fact that the applicant chose the Labourer 2 classification, his 2014 Personal Work Selection List included Solid Waste Collection Operator and Water Maintenance Worker 3 classifications.
10Those classifications require certification, which is governed by regulations made by the Ministry of the Environment pursuant to statute. To be certified, one must have completed a certain number of designated training hours.
Applicant’s Submissions
11The applicant alleges the following:
a. During May 2013, he was asked to perform additional work that was not asked of his peers.
b. During August 2013, he was assigned modified jobs that were not suitable for him. He alleges that his supervisors and management knew that he had an injury and he was not properly accommodated.
c. On October 16, 2013, R.M., a supervisor in the District Operations Section, Toronto Water Division, told him that he works in a poisoned work environment. The applicant alleges that the following day, R.M. gave him a negative performance review letter. He further alleges that management knew of his injury.
d. On March 3, 2014, during the WSP, the applicant asked the personal respondent Fieldhouse (“D.F.”), a Human Resources Consultant in the Occupational Health and Safety/Disability Management section of the Human Resources Division, how many positions were left in a Toronto Water yard. The applicant alleges that, in response, D.F. asked the applicant medical questions and proceeded to make comments about the applicant’s injuries, his fitness to work and the fact that he could be fired. The applicant alleges that he was demoted to a more physically demanding position. The applicant maintains that the comments were related to his disability and that he was discriminated against because of a disability.
e. On August 22, 2014, the applicant was denied equal opportunity and discriminated against because of a disability. He maintains that the personal respondent Gillis (“R.G.”), Manager in the District Operations Section, Toronto Water Division, refused to sign a Ministry of the Environment Drinking Water Certificate Application form (“DWC Application”). The applicant maintains that R.G. would not sign the form because of the applicant’s injury and because he had insufficient designated training hours to be licensed.
Respondents’ Submissions
12The respondents submit that the first allegation occurred prior to the onset of the applicant’s disability and, as such, has no reasonable prospect of success because it cannot be linked to a Code ground.
13The respondents submit that although there is a connection between the second and third allegations, in that the applicant alleges that specific supervisors, at a specific work location, failed to accommodate him within a specific period of time, there is no connection between those allegations and the fourth allegation.
14The respondents maintain that the fourth allegation occurred during the 2014 WSP. They submit that the applicant’s 2013 contract had ended and the applicant was in the process of selecting a new fixed-term contract for the 2014 work season when the incident is said to have happened. They maintain that the fourth allegation involves a completely different individual, D.F., and his employment under the same umbrella does not, in and of itself, connect this allegation to the second and third allegations.
15The respondents submit that the fifth allegation is the only allegation that has been filed in a timely manner. They maintain that it is completely different in nature than any of the other allegations. They are of the view that the second and third allegations involve an alleged failure to accommodate and the fourth allegation involves allegedly discriminatory comments made during the 2014 WSP, while the fifth allegation pertains to a completely different individual, R.G., and a completely different period of time. The respondents submit that the applicant was no longer working for the Toronto Water Division, but was working for the Park, Forestry and Recreation Division, when R.G. failed to sign his DWC Application.
16The respondents also submit that this final allegation is a completely separate and discrete issue that has absolutely no nexus or connection to the alleged failure to accommodate or the alleged discriminatory comments made in the context of the other allegations.
Applicant’s Response to the RFOP
17In his Response to the RFOP, the applicant maintains that his Application has been filed in a timely manner. He argues that R.G. could have signed the DWC Application but chose not to do so because of the injury to his back, which occurred in June 2013 but still had recurring symptoms in August 2014. The applicant also argues that the allegations form a series of incidents. The applicant maintains that D.F., whom he met at the 2014 WSP, was the nurse consultant responsible for his file. He maintains that D.F. was likely aware of his injury and played a role in the administration of his return to work and accommodation process.
decision and analysis
Delay
18Section 34 of the Code states in part:
(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.
19An applicant may only apply to the Tribunal more than a year after the last event giving rise to the application if the Tribunal is satisfied that the delay was incurred in good faith. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.
20The Tribunal has also held that where it is not satisfied the delay was incurred in good faith, it is not necessary to consider prejudice. See Esanu v. Georgetown Non- Contact Hockey League, 2009 HRTO 579.
21When an application contains a number of allegations that span during a period of time, the Tribunal must consider whether the allegations form a “series of incidents”.
22In Pakarian v. Chen, 2010 HRTO 457 at para. 25, the Tribunal stated that in order to form a series of incidents, there must be some connection or nexus between the incidents that are alleged to form the series, as opposed to incidents that are discrete and separate:
The dictionary definition of “series” is: “a number of things or events of the same class coming one after another in spatial or temporal succession” [Merriam-Webster online]. In applying the definition to the facts of this case, it is necessary to determine which events can be grouped together into a “class,” which for the purposes of an Application under the Code, must be defined in relation to discrimination. Therefore, the question to determine is whether the applicant has alleged a number of events relating to discrimination which can be said to have incurred one after another in temporal succession, and if so, when did the last such event occur.
See also Gagne v. Algoma University, 2010 HRTO 2016; Szyluk v. United Food and Commercial Workers Canada, 2010 HRTO 2051; and Chappell v. Security as Canada Limited, 2012 HRTO 874.
23In Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30 (“Garrie”), the Tribunal held that the following factors are relevant to a determination of whether the allegations form part of 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?
24The August 22, 2014 incident, the allegation that R.G. refused to sign the DWC Application, occurred within one year of filing the Application and is therefore timely. I am not satisfied that the other allegations contained in the Application are sufficiently connected to the August 22, 2014 allegation to amount to a series of incidents. I also find that the prior allegations relate to separate and independent incidents that are not part of a continuing effect of a single incident of discrimination.
25The first allegation relates to harassment that occurred prior to the applicant’s injury and is unrelated to disability. As a result, it is unrelated to the other allegations, which involve the applicant’s injury/disability, and is not within the jurisdiction of this Tribunal.
26The second and third allegations relate to an alleged failure to accommodate the applicant’s injury by supervisors, H.C. and R.M., during his contractual employment in 2013. They have no connection to the fourth allegation, which occurred during the 2014 WSP, after the end of the applicant’s 2013 contract, and relates to an alleged demotion and not a failure to accommodate. The applicant selected the position of Labourer 2 during the 2014 WSP and there is no indication that his disability was a factor in this selection.
27I find that the fifth allegation is completely different in nature than any of the other allegations. It pertains to a completely different individual, R.G., and a different period of time, August 2014, well after the 2014 WSP and well after the applicant’s 2013 employment contract. It appears that the applicant was no longer working for the Toronto Water Division at the time of the fifth allegation and the substance of the allegation is different from the previous allegations. This is not an allegation of failure to accommodate because of a disability. As mentioned above, the certification of Water Operators is regulated by the Ministry of the Environment pursuant to statute. R.G. was legally required to decline to sign the DWC Application if the applicant did not have the required training hours. The dispute in the fifth allegation revolves largely around the number of training hours that the applicant had and whether his injury was a factor in the refusal to sign the DWC Application.
28I find that the allegations prior to the August 22, 2014 incident do not form part of a series of incidents and were not filed within the time period required by the Code.
29I must now determine whether the delay was incurred in good faith. The Tribunal has held that applicants have a “fairly high onus” in providing explanations for delay. Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
30The applicant did not provide a reason for the delay in filing related to the allegations prior to August 22, 2014. As a result, I cannot find that the delay was incurred in good faith.
No reasonable prospect
31The respondents also requested a summary hearing on the question of whether the remainder of the Application should be dismissed because there is no reasonable prospect that the allegations related to the August 22, 2014 event will succeed. I have decided not to hold a summary hearing.
32Rule 19A.5 of the Rules of Procedure provides that the Tribunal need not give reasons for a decision not to hold a summary hearing following a party’s request. However in the circumstances the following comments are appropriate.
33In cases where there are competing accounts of what actually happened it may not be possible to determine whether there is no reasonable prospect that the application could succeed without hearing some evidence, and the summary hearing process, where no evidence is tendered, is not appropriate for that determination. However, as the Tribunal discussed in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, this does not necessarily mean that the next step is a full hearing. The Code and the Tribunal’s Rules of Procedure give the Tribunal broad powers to structure hearings to ensure fair, just and expeditious adjudication of applications.
34Hearing dates are scheduled for April 27 and 28, 2016, and the Tribunal will proceed with the hearing of the merits of the remaining allegation. Although a summary hearing to address this matter will not be held, I anticipate that one day will be sufficient to hear this case. The hearing date of April 28, 2016 is cancelled.
Order
35The Tribunal orders that
a. the allegations of May 2013, August 2013, October 2013 and March 2014 are dismissed;
b. the hearing on the merits scheduled for April 27, 2016 will consider only the August 22, 2014 allegation; and
c. the hearing date of April 28, 2016 is cancelled.
36I am seized of this matter.
Dated at Toronto, this 17th day of March, 2016.
“Signed by”
Josée Bouchard
Vice-chair