Billone v. The Corporation of the City of Mississauga, 2016 HRTO 439

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Billone

Applicant

-and-

The Corporation of the City of Mississauga

Respondent

INTERIM DECISION

Adjudicator: David Muir Date: April 7, 2016 Citation: 2016 HRTO 439 Indexed as: Billone v. The Corporation of the City of Mississauga

WRITTEN SUBMISSIONS

John Billone, Applicant Peter A. McSherry, Counsel

The Corporation of the City of Mississauga, Respondent Graham Walsh, Counsel

Introduction

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This Application was filed on July 28, 2015 and relates to a number of incidents of alleged discrimination from November 2000 to September 2014. The allegations in the Application relate primarily to an email sent in September 2014. The applicant is almost entirely devoid of particulars but suggests what the applicant describes as harassment from November 2000 to September 2014. In his Reply, the applicant provided some particulars of several incidents said to have occurred over this 14 year period. In general terms the allegations appear to be that there were a number of inappropriate comments made by co-workers and supervisors in some way related to an alleged disability or perceived disability.

3In its Response (Form 2) the respondent argued that the Application was lacking particulars and large parts of it appeared to be out of time. The respondent denied the allegations to the extent that they were particularized. In particular the respondent assets that the September 2014 email that was at the heart of the Application as originally framed was sent in error.

4The applicant filed a Reply (Form 3) in which he provided limited particulars of his allegations.

5The hearing of this case is scheduled to take place on June 2 and 3, 2016 in Toronto.

6On January 27, 2016 the respondent filed a Request for Order During Proceeding seeking the dismissal of all or substantially all of the Application on the basis that much of it was out of time and that there was no reasonable prospect that the Application as it related to the September 2014 email would succeed.

7The applicant responded to the Request in a timely way.

8Due to administrative error, the respondent's Request was not brought to an adjudicator to determine.

No Reasonable Prospect

9The respondent argues that the one clearly timely allegation related to an email sent in September 2014 should be dismissed because it has no reasonable prospect of success.

10This aspect of the Request is denied at this stage. I have come to this conclusion at a preliminary stage of the proceeding prior to the production of a will-say from the applicant particularizing the very general allegations in the Application and Reply. I also come to the conclusion despite the fact that the respondent has provided an explanation for the email that may be an answer to it and to the applicant's theory that the email confirms his suspicion that he was being inappropriately managed in the workplace. However the explanation offered by the respondent requires evidence from the respondent. The allegation with respect to the October 2014 email will proceed to a hearing.

Delay

11In its Request, the respondent sought the dismissal of the remainder of the Application because of delay. This aspect of the Request is in large part granted for the reasons set out below.

12Sections 34(1) and (2) of the Code provide:

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 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.

13The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, 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

14The Tribunal has also interpreted the phrase "series of incidents" in section 34(1)(b) as requiring that the alleged incidents be connected to each in terms of their taming and their subject matter. The phrase "series of incidents" recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language of the section provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified. The Tribunal has determined that the logic of the section suggests that the gap between incidents in a putative "series" may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame. See Chintamen v. Toronto District School Board, 2009 HRTO 1225.

15In this case whether or not the allegations can be connected in terms of their subject matter, the gaps in time between the alleged are simply too great to be considered a temporally connected series of incidents.

16In his Reply and in apparent response to the respondent's complaint of a lack of particulars in the Application, the applicant identified the following incidents of discrimination:

a. November 2000 – Verbal harassment by P.B. and J.M.

b. Autumn 2000 – Verbal harassment by B.M.

c. Summer/Autumn 2002 – Verbal harassment by J.M.

d. May 2009 – Verbal harassment by M.C.

e. July 2013 – Violation of Respectful Workplace Policy by J.M., A.F. and A.M.

f. September 2014 – The email incident – involving A.M. and others

17As I concluded in Chintamen, above, the logic of section 34(1) is that gaps in time of one year or more will be sufficient to interrupt a putative series of incidents. In this case the gaps in time are 2, 7 and 4 years with no explanation for these significant gaps in time. I also note that while some of the individuals are common to more than one of the incidents, others involve single incidents of an allegedly inappropriate comment by persons whom the respondent advises have long retired and are no longer in the workplace. In my view these gaps in time are sufficiently lengthy to require the dismissal for delay of all of the allegations prior to the July 2013 allegation.

18The applicant argued that the events between 2000 and 2013 are relevant to showing that there was animosity towards the applicant as a consequence of the applicant's absenteeism. The fact that an allegation may be relevant to an issue in dispute does not make it timely. I would also observe that while the applicant asserts in his submissions on the delay issue that the absenteeism was a consequence of a medical condition known to the respondent, in his Reply he pleaded that the absenteeism was consequent to an undiagnosed medical condition. In any event it remains that the applicant makes no allegations of incidents said to have occurred between 2002 and 2009 or between 2009 and 2013. The temporal gaps are simply too lengthy for the putative series to survive.

19I am not prepared to dismiss the July 2013 incident at this stage. It is not entirely clear at this stage that it is not connected in some way to the September 2014 email incident and the applicant's theory of what that email disclosed to him – that he was being inappropriately monitored by management. I also note that the July 2013 allegation allegedly involves one or more of the individuals implicated in the September 2014 email incident. At this stage it may be that the final resolution of this issue can only be dealt with after hearing some or all of the evidence related to these two incidents.

Next Steps

20As previously indicated this case is scheduled for a two day hearing. In a Case Assessment Direction issued on April 6, 2016 I directed that the parties deliver and file their hearing materials on April 25, 2016.

21In addition to any other materials the parties may wish to rely upon they are reminded of the Tribunal's requirement that the parties identify their witnesses and provide a detailed summary of their witness' expected evidence. The Tribunal does not always require that the applicant provide a will-say given that their allegations should be described in detail in the narrative of the Application. However in this case, as noted above the applicant's allegations are skeletal. The applicant should provide a detailed summary of his allegation with respect to the two remaining allegations in this case failing which his evidence will be confined to the allegations contained in the Application and Reply.

Orders

22The Tribunal makes the following Orders:

a. The Request to Dismiss the Application as having no reasonable prospect of success is denied at this stage;

b. The Request to dismiss the Application due to delay is granted with respect to all allegations prior to the July 2013 allegation at this stage. This is not a final determination of the timeliness of this aspect of the Application.

c. The applicant is directed, in addition to the other materials required to be delivered and filed pursuant to the Tribunal's Rules, to deliver and file a detailed summary of his evidence with respect to the July 13, 2013 and September 2014 email incidents, failing which his evidence will be confined to the allegations made in the Application.

23I am not seized of this case.