HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jonathan Sanderson Applicant
-and-
Best Buy Canada Ltd. Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard Date: April 14, 2016 Citation: 2016 HRTO 468 Indexed as: Sanderson v. Best Buy Canada Ltd.
APPEARANCES
Jonathan Sanderson, Applicant Maija C. Laitinen, Counsel
Best Buy Canada Ltd., Respondent Nicholas Ellegood, Counsel
Introduction
1The applicant was employed by the respondent from approximately June 30, 2004 until March 2015. The applicant at times expressed himself as gender non-conforming. As a result, he alleges that he experienced ongoing harassment and discrimination due to his gender identity, gender expression and perceived sexual orientation and that he was subject to a poisoned work environment.
2On September 4, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, gender identity, gender expression, sexual orientation, association with a person identified by a Code ground and reprisal or threat of reprisal.
3By Case Assessment Direction issued on November 30, 2015, the Tribunal directed that a summary hearing be held to address the following two preliminary issues:
a. Should the Application be dismissed, in part, pursuant to s. 34 of the Code because of delay?
b. Should the Application be dismissed pursuant to Rule 19A of the Tribunal’s Rules of Procedure because there is no reasonable prospect that the Application or part of the Application will succeed?
4On February 22, 2016, the applicant filed Summary Hearing Submissions and a Request for an Order During Proceedings seeking to amend the Application (“request to amend”).
5The respondent filed a response to the request to amend on March 7, 2016 objecting in part to the request. The respondent also filed Summary Hearing Submissions on March 21, 2016.
6By Case Assessment Direction issued on March 30, 2016, the Tribunal granted the request to amend, with reasons to follow, and permitted the applicant to rely on the facts presented in Schedule A of the request to amend.
7The Tribunal held the Summary Hearing on April 5, 2016.
8This Interim Decision provides reasons for granting the applicant’s request to amend and decides the issues of delay and whether there is no reasonable prospect that the Application will succeed.
ANALYSIS AND DECISION
Reasons for Granting Amendment
9The Tribunal received notice on January 8, 2016 that the applicant had retained legal counsel. On February 22, 2016, the applicant filed the request to amend, seeking to provide further particulars and to clarify the Application. With the assistance of counsel, the applicant sought to amend his Application to withdraw irrelevant allegations, provide further particulars and clarify his allegations of Code-related harassment and discrimination in his employment with the respondent.
10The respondent objected in part to the request to amend, arguing that it would be prejudiced by some of the proposed amendments that raise allegations for the first time, or that are out of time or vague, or that do not appear to add to the allegations already made in the Application.
11The Tribunal granted the request to amend noting that Rule 1.7(c) of the Tribunal’s Rules of Procedure provides that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended.
12In deciding requests to amend the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondents. See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
13In considering these factors I find that the nature of the applicant’s proposed amendments do not change the substance of the original Application. The proposed amendments withdraw allegations that are not within the scope of the Application, clarify the Application, provide particulars about how the allegations are founded on Code grounds and present the allegations in a clear, chronological and concise way. Although the respondent asserted prejudice as a result of new allegations, I find that the request is made at an early stage in the process, as mediation has not been scheduled and the parties have not exchanged arguably relevant documents or witness lists. I find that there is no prejudice to the respondent in granting the request to amend.
Delay
14Section 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.
15An 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.
16The 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.
17When 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”.
18In Pakarian v. Chen, 2010 HRTO 457 at para. 25 (“Pakarian”), 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.
19In 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?
20The applicant argues that the Application is timely as the last alleged incident of discrimination took place on November 26, 2014 and the Application was filed on September 4, 2015. The applicant also submits that the allegations from 2011 onward, or in the alternative, from 2013 onward, form part of a series of incidents within the meaning of section 34(1)(b) of the Code that extend to and include the allegations of discrimination within the one year limitation period.
21The applicant alleges incidents as follows:
a. In approximately December 2011, an employee of the respondent made sexually explicit inappropriate comments to the applicant. The applicant reported the incident to his manager who investigated.
b. In approximately March 2013, another employee of the respondent made inappropriate and threatening gender identity based comments to the applicant. The applicant reported the incident to the same manager who investigated the incident and reported to him that he had dealt with it.
c. In approximately May 2013, another employee of the respondent made inappropriate comments to the applicant, based on his gender identity and/or perceived sexual orientation. The applicant reported the incident to the same manager who, again, investigated the incident and reported to him that he had dealt with it.
d. Between July 2013 and January 2014, the applicant took a disability-related leave.
e. Between July and August 2014, the employee involved in the May 2013 incident and a former employee of the respondent made numerous inappropriate comments based on gender identity and perceived sexual orientation to the applicant on Facebook, and by text and phone messages. The applicant complained to various managers about the harassment but the respondent failed to take adequate steps to investigate or otherwise address the poisoned work environment. The respondent also allowed the former employee to visit the store regularly, making the applicant feel threatened.
f. In late August 2014, the applicant received a verbal warning to “stop talking about personal issues at work” as it was difficult for other employees to do their work.
g. On September 11, 2014, the respondent issued a formal written warning and told the applicant to refrain from making social media posts as well as speaking to co-employees in the workplace about his “personal issues”. The respondent filed the notes from the meeting in the applicant’s employment file.
h. From September until March 2015, the former employee continued to visit the respondent’s store while the applicant was working. The applicant felt threatened by these visits.
i. On November 24, 2014, the respondent threatened to terminate the applicant’s employment due to his attendance record, without making any reasonable inquiries as to whether the applicant’s mental health and/or history of workplace harassment were affecting his attendance. During this conversation, the applicant attempted to raise concerns about being harassed at work. The applicant was told to forget about the harassment and to keep his personal problems separate from work. The applicant was also told that the harassment had been dealt with.
22The respondent argues that the applicant relies on two “last events” which the applicant states occurred on September 11, 2014 and November 26, 2014. The first was that the respondent issued a formal written warning to the applicant and allegedly told him to stop talking about his personal issues in the workplace. The second was a meeting between the applicant and the District Human Resources Manager (“HR Manager”), where the applicant was allegedly told to “move on”. The respondent maintains that, even though these alleged incidents are timely, they do not relate to a Code right, including reprisal, and cannot be considered as the last Code related incidents.
23The respondent argues that the applicant makes no specific allegations of Code-based harassment occurring after July 2014 and provides no explanation for why the complaint was not brought earlier. The respondent submits that this is because any alleged harassment that may have occurred before July 2014 were dealt with appropriately by the respondent and ceased.
Last Alleged Incident
24In applying Pakarian, above, I am of the view that the last alleged incident of discrimination to which the Application relates occurred on November 26, 2014. On that date, the applicant met with the respondent’s HR Manager. Although the respondent alleges that the meeting was held to talk about the applicant’s sick days and options for the applicant’s continued employment, the applicant alleges that he attempted to raise concerns about being harassed at work at the meeting and was told to forget about it, that his concerns had been dealt with. I find that the allegation that the respondent refused to address issues of harassment at that meeting is the last incident in the Application and is timely. All of the allegations pre-dating September 2014 are out of time unless they are considered to be a “series of incidents” within the meaning of section 34 of the Code.
Temporal Gap – December 2011 – March 2013
25There is a temporal gap of more than one year between the incidents that allegedly occurred in December 2011 and March 2013, which the applicant does not explain. A gap of more than one year between events has been considered in some cases to interrupt the “series of incidents”. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360 and Chintaman v. Toronto District School Board, 2009 HRTO 1225. The Tribunal uses a flexible approach when considering whether there is a “series of incidents” and also considers the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised on incidents relating to discrete and separate issues without some connection or nexus. See Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, and Baisa v. Skills for Change, 2010 HRTO 1621.
26The December 2011 allegations are based on assertions of fact that could reasonably be viewed as sufficiently similar or related to constitute, if established, a pattern of conduct. Although the December 2011 allegation relates to the only incident perpetrated by the one employee, the incident was reported to the applicant’s manager who investigated the incident. The applicant reported the subsequent March and May 2013 and the July 2014 incidents to the same manager who allegedly investigated and dealt with the incidents. Finally, that same manager met with the applicant on September 11, 2014 and provided the applicant with a warning letter.
27At this stage, it is not obvious to me that the December 2011 allegation is not part of a “series of incidents”. I am not prepared to exercise my discretion at this stage to dismiss this allegation, although the respondent is not barred from raising it at the hearing, should this Application proceed to a hearing.
Temporal Gap – May 2013 to June 2014
28There is a temporal gap of approximately one year between the incidents that allegedly occurred before May 2013 and after June 2014, which is explained by the applicant’s disability-related medical leave. In Kassim v. Toronto (City), 2013 HRTO 1850, the Tribunal found that a gap of more than one year, when there is a disability related absence from work and the poisoned work environment continues before and following the leave, is not a bar to establishing a “series of incidents”. See also Cosby v. Aditya Birla Mincas Worldwide Inc., 2012 HRTO 2389 at para. 13.
29I find the facts of this case similar: there is an allegation of poisoned work environment that continues before and after the applicant’s disability-related absence. I find that the gap of almost one year between the incidents is not a bar to establishing a series of incidents and I am not prepared to exercise my discretion at this stage to dismiss this allegation.
Series of Incidents
30I find that the summary set out above describes incidents in some temporal relation to each other which are capable, if proven, of establishing a poisoned work environment or discrete violations of the Code. Consistent with the liberal approach to be taken in considering these issues as a preliminary matter, these allegations appear to be capable of describing a series of incidents within the meaning of section 34(1). Each alleged discriminatory comment or incident constitutes a separate and distinct breach of the Code as they relate to inappropriate, degrading and threatening comments based on sex, perceived sexual orientation, gender identity, gender expression and disability. They are also similar in nature as they were allegedly perpetrated by the same employees and reported to the same managers. The allegations show a pattern of harassment that target the applicant in a negative and threatening way and which, when reported, allegedly were not addressed appropriately. I am not prepared to exercise my discretion at this stage to dismiss the allegations.
No Reasonable Prospect of Success
31The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider early in the proceeding whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
32The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.
33However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information that tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.
34As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.
35Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.
36As mentioned above, the applicant alleges incidents of discrimination that begin in approximately December 2011 and continue as a series of incidents until the spring 2015. The allegations are Code-based as they relate to inappropriate, degrading and threatening comments based on sex, perceived sexual orientation, gender identity, gender expression and disability.
37If I accept the facts put forward by the applicant as true and provable, I cannot find that the Application has “no reasonable prospect of success” under the Code.
38The applicant also alleges reprisal or threat of reprisal. The applicant and respondent were in agreement that Noble v. York University, 2010 HRTO 878 is applicable to a consideration of whether a reprisal has occurred. However, the applicant relies on Tremblay v. 1168531 Ontario Inc. o/a Subway, 2010 HRTO 2394, to argue that the Tribunal should not grant the request to dismiss for “no reasonable prospect of success”. In Tremblay, the applicant alleged that she was dismissed from her employment as a reprisal for raising concerns regarding alleged mistreatment and insulting remarks. The respondents requested a dismissal of the application on a preliminary basis. The Tribunal decided that the question of whether the application raises allegations of reprisal based on a Code protected ground could not be determined at this preliminary stage because it was a matter that required an assessment of the facts and evidence along with an interpretation of the law in the area.
39Applying the Tremblay decision to this case, I find that it is premature to dismiss the Application on the basis that it fails to raise reprisal related to a Code ground.
Order
40The Tribunal orders as follows:
a. The respondent may file a Response or an amended Response to respond to the amendment to the Application within 35 days from the date of this Interim Decision. If the applicant wishes to file a Reply to any Response or amended Response, he must do so within 14 days of receiving a Response or an Amended Response from the respondent.
b. The request to dismiss the Application for delay is dismissed.
c. The request to dismiss the Application for “no reasonable prospect of success” is dismissed.
d. A one-day hearing will be scheduled.
41I am not seized of this matter.
Dated at Toronto, this 14th day of April, 2016.
“Signed By”
Josée Bouchard Vice-chair