HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stefan Vrabie
Applicant
-and-
Regional Municipality of Peel Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Vrabie v. Peel Police Services Board
WRITTEN SUBMISSIONS
Stephan Vrabie, Applicant Self-represented
Regional Municipality of Peel Police Services Board, Respondent Lynda Bordeleau, Counsel
1This Application, filed on December 27, 2013 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of place of origin, disability and marital status.
Procedural History
2The applicant is police constable in the respondent police service and alleges that he has been subject to discrimination and harassment throughout his career in violation of his Code rights. In the Application, the applicant describes several incidents occurring between 2003-2004 and the end of May 2013. The respondent filed a Response in which it denies the allegations. The respondent also raised several preliminary issues. Specifically, the respondent has requested dismissal of the allegations regarding incidents alleged to have occurred more than one year before the Application was filed and requested a summary hearing regarding three allegations that it submits have no reasonable prospect of success. The allegations in question relate to a 911 call the applicant made in January 2007, an incident involving Acting Sergeant Cade in December 2011 and his interactions with Acting Sergeant Farquharson in 2013.
3The applicant responded to the respondent’s preliminary objections. The applicant filed submissions with respect to the issue of delay, taking the position that the incidents set out in the Application amount to a series of incidents for the purposes of sections 34(1)(b) of the Code. In support of his position, the applicant referred to the Tribunal’s decision in Grange v. Toronto (City), 2014 HRTO 633, which was released on the same date as the respondent filed its Request for Summary Hearing and its request to dismiss for delay. In his Reply, the applicant submitted, amongst other things, that he intends to present evidence, set out in Appendix “C” to the Reply, regarding the experience of another officer in the respondent’s employ in support of his allegation that he is the victim of systemic discrimination.
4The respondent filed a subsequent Request for an Order During Proceedings, seeking an order to permit it to respond to the Reply, striking out Appendix “C” to the Reply and to permit it to reply to the applicant’s response to its request to dismiss for delay. Regarding the last of these requests, the responded submitted that the applicant relied heavily on Grange, which was released at the time of the request to dismiss and therefore requested an opportunity to make submissions regarding the import of that decision. The applicant opposed these requests.
5By Case Assessment Direction dated April 2, 2015, the Tribunal directed that a preliminary/summary hearing be held to determine whether some of the applicant’s allegations should be dismissed for delay and whether some of the applicant’s allegations should be dismissed because they have no reasonable prospect of success. The Tribunal held the preliminary/summary hearing by teleconference on September 22, 2015.
The Allegations
6The applicant states that he was born in Romania and immigrated to Canada in 1995. The applicant joined the respondent police service in May of 2000 and joined “E” Platoon at 12 Division.
7The applicant alleges that in 2003-4 a training officer advised him that two other senior officers wanted the applicant out of the police service and gave him advice to protect himself. The applicant alleged that, unlike other officers, he did not have a consistent coaching officer and he was subjected to explicit and implied statements denigrating him as an immigrant and a foreigner.
8The applicant states that on an unspecified date in 2003, the applicant's Staff Sgt., Bill Scanlan, profanely criticized the applicant's use of language in the report and called him a "fucking immigrant". The applicant states that shortly after this incident Staff Sgt. Scanlan again called him into his office where he presented the applicant with a letter commending a report the applicant had written. Staff Sgt. Scanlan told the applicant to "get the fuck out of my office". Other officers received much better treatment and positive reinforcement. The applicant states that he was given a very work intensive assignment, but not given time to complete the necessary paperwork. Other officers were granted time off for sports and other events, allowed to go home early or come in late, and they were afforded time to complete administrative tasks.
9The applicant transferred to the Airport Division in 2004 and remained there until 2011. The applicant states that his experience at the Airport Division was generally better, but he continued to experience differential treatment. The applicant states that he was assigned a disproportionate number of calls and that his radio transmissions were treated differently. The applicant states that he was never transferred to a specialized bureau while other junior officers rotated through the Criminal Investigation Bureau without having applied for them.
10The applicant states that in January 2007, his house was targeted by a group of young men. The applicant called 911 for help and was able to scare the men away. The police (from 12 Division) arrived, but did not treat the incident with sufficient gravity, in the applicant's view. The applicant provided additional information about the incident, but was advised that 12 Division did not wish to follow up. The applicant states that the Airport Division agreed to investigate, but his Staff Sgt. abruptly advised him to "drop it".
11The applicant states that in the fall of 2008 his wife was diagnosed with a serious illness and experienced a very complex and difficult recovery. At about the same time, the applicant's Staff Sgt. advised the applicant to prepare for a transfer. In the circumstances, the applicant did not wish to be transferred and requested that the decision be reversed. After speaking with senior officers he was permitted to remain at the Airport Division. Nonetheless, the applicant was again advised to prepare for transfer about four months later. The applicant identified a court security officer position, as it had a predictable and less stressful work environment. When it was revealed that he selected this assignment because of health issues in his family, he was permitted to remain at the Airport Division. The applicant states that less than a year later he was transferred back to 12 Division. In its Response, the respondent states that the applicant returned to 12 Division on May 10, 2011.
12The applicant states that in December 2011, Acting Sgt. Cade committed an abuse of power against him. In a report regarding the incident, included in the Application, the applicant states that Acting Sgt. Cade called him on his day off to confront him, in a contemptuous manner, regarding a report the applicant had written. The applicant states that Acting Sgt. Cade's call and accusations were not justified. In the report, the applicant described Acting Sgt. Cade's history of hostility as stemming from a dispute between them at work in 2001. The applicant states that he attempted to arrange an informal meeting with Acting Sgt. Cade through his supervisor, but Acting Sgt Cade refused. The applicant began to feel high levels of stress and approached the Early Intervention Unit when it became unbearable. He was introduced to Inspector Whyte, who conducted an investigation and concluded that the applicant’s assessment was correct and urged the applicant to file a complaint. The applicant states that he opted for minimal intervention to avoid grudges and retaliation. Acting Sgt. Cade continued to receive acting supervisory duties.
13In an appendix to the Application, the applicant described several incidents involving Sgt. Rocha, his direct supervisor, as follows:
on September 17, 2012 and September 18, 2012, Sgt. Rocha challenged the applicant for being in the division instead of on patrol when there were no cruisers available;
on September 29, 2012, the applicant was challenged about being late, although he was not late. Sgt. Rocha asked if the applicant was on “Bucharesti time”;
on September 23, 2012 Sgt. Rocha asked every member of the platoon, except the applicant, if they wanted to take time off at the end of the shift;
on October 13, 2012 Sgt. Rocha made a point of noting that the applicant had been granted two hours early departure, but granted another officer four hours. The applicant states that this was done in a manner intended to show that the applicant was disfavoured;
October 14, 2012 Sgt. Rocha asked for volunteers for early departure, but disqualified the applicant. When the applicant protested, Sgt. Rocha replied "Fuck you Stefan";
on November 15, 2012, Sgt. Rocha commented that the applicant was "only sick on nights". Sgt. Rocha also read medical updates the applicant provided to other members of the platoon;
Sgt. Rocha disparaged the applicant to other officers and referred to him as the “Count of Schizophrenia”.
December 28 and 31, 2012, Sgt. Rocha confronted the applicant about sick leave. Sgt. Rocha made comments to the applicant and others indicating that he believed the applicant faked his illness;
on January 11, 2013 Sgt. Rocha stated during the platoon "Parade" or meeting that all his officers wrote good reports and look at the applicant and said "those who speak English". The applicant felt targeted as he was the only person present who spoke English as a second language.
14The applicant also states that Acting Sgt. Farquharson engaged in several acts of discrimination as follows:
after an incident involving the applicant's car on February 28, 2013, Acting Sgt. Farquharson treated the applicant in a condescending and degrading fashion regarding the incident report;
the applicant sought to address the matter with Acting Sgt. Farquharson, but was denied the opportunity;
on or about March 6, 2013, Acting Sgt. Farquharson sent the applicant's partner a message "Do you know who you are working with?". The applicant advised his partner to advise Acting Sgt. Farquharson that they were friends to which Acting Sgt. Farquharson replied "Thought you're a better judge of character than that";
on May 13, 2013, the applicant was excluded from "food night", a social gathering;
on May 29, 2013, Acting Sgt. Farquharson declined to assist the applicant at an accident scene.
15The applicant states that the discrimination he has experienced has impaired his career advancement and caused him to seek mental assistance for stress.
Applicant's Submissions
16The applicant's position with respect to both the issues of delay and whether some of his allegations have no reasonable prospect of success is that he believes that Staff Sgt. Scanlan wanted him to fail as a police officer. The applicant submitted that Staff Sgt. Scanlan either orchestrated directly or influenced others to commit the incidents described in the application because of his bias against the applicant's place of origin. The applicant submitted that, accordingly, his claim is one of the systemic discrimination. There is no dispute that Staff Sgt. Scanlan retired on October 1, 2011.
911 Call
17In his response to the respondent’s request to dismiss parts of the Application, the applicant submitted that he found people on his door after he called 911. The applicant states that when the police arrived, he spoke to the attending officer, identified himself as a police officer and indicated the possibility of a home invasion. The applicant states that he conducted a follow up investigation and brought his findings to the Criminal Investigation Bureau (“CIB”) and his supervisors at the Airport Division. The applicant states that he challenged the initial disposition of the call and requested that the incident be reported. The applicant submitted that although Staff Sgt. Scanlan was not on duty at the time of the incident, he believes that the incident was not investigated properly because of Staff Sgt. Scalan’s influence.
18During the hearing, the applicant submitted that there was no logical explanation for the poor response to the 911 call, other than a culture of exclusion in the police ranks. The applicant submitted that the Airport Division agreed to investigate, but abruptly decided not to. The applicant stated that his “strong suspicion” is that Staff Sgt. Scalan was involved in the decision not to investigate the incident further. The applicant stated that he believes that he will be able get evidence confirming his suspicion from his superiors from Airport Division and that he intends to call the CIB officer involved to discover why the investigation stopped. The applicant stated that it was his intention to call other officers and senior officers regarding all of the incidents alleged to have occurred in his early career at 12 Division.
Acting Sgt. Cade
19In his written submissions, the applicant stated that Acting Sgt. Cade’s actions were disproportionate. The applicant submitted that Acting Sergeant Cade’s hostility towards him can be attributed to Staff Sgt. Scanlan’s influence. The applicant noted that the respondent’s position is that Acting Sgt. Cade’s actions were justified, but asked rhetorically, why his offer to mediate would be rejected and why would Inspector Whyte conclude that the respondent had failed the applicant and was willing to discipline Acting Sgt. Case and his supervisors.
20In oral submissions, the applicant stated that Acting Sgt. Cade was exposed to the culture of inequity and discrimination at 12 Division in the early 2000s and was influenced by Staff Sergeant Scanlan. The applicant stated that he will present witnesses to testify that Staff Sergeant Scanlan encouraged discrimination.
Acting Sgt. Farquaharson
21In his written submissions, the applicant noted that the respondent provided a different account of the incident involving his vehicle on February 28, 2013. The applicant stated that the evidence will establish his version of events. The applicant stated that the respondent's explanation that Acting Sgt. Farquharson's message to the applicant's partner reflected his concern that the applicant was a bad influence was contradicted by the applicant's performance reviews. The applicant stated that a Staff Sgt. Cranna asked Acting Sgt. Farquharson to explain his behavior regarding the accident report. The applicant submitted that Acting Sgt. Farquharson declined mediation, which shows his hostility towards him. The applicant submitted that Acting Sgt. Farquharson's supposed concern for his partner is "phony" and that his true concern was expressed when he said "watch out for this guy, he's angling for a lawsuit". The applicant asserts that this remark reveals a prejudiced state of mind and suggests human rights concerns. The applicant submitted that Acting Sgt. Farquharson did not follow normal practices when he declined to assist the applicant at an accident scene on May 29, 2013. The applicant noted that he could have used Acting Sgt. Farquharson's assistance and in fact waved Acting Sgt. Farquharson over to help, but he drove away. The applicant submitted that Acting Sgt.'s Farquharson’s behaviour was intended to intimidate the applicant because he thought the applicant was "angling for a lawsuit", which he submitted amounts to discrimination contrary to the Code.
22In his oral submissions, the applicant submitted that he has spoken to several witnesses about Acting Sgt. Farquaharson’s behaviour. Specifically, the applicant stated that he expected that these witnesses would testify that they had observed Acting Sgt. Farquaharson make comments demonstrating bias regarding place of origin.
23The applicant attached as Appendix “C” to his Reply a complaint drafted by Constable Caicas, who is also an officer in the respondent police service. Constable Caicas is also a Romanian immigrant and joined the respondent police service in April 2001. Constable Caicas complains of unwarranted discipline and scrutiny, unfair denial of promotions, transfers and courses for which he applied; failure to follow policies and procedures for staffing decisions; and, hostility from supervisors. The applicant submitted that Constable Caicas’ complaint is similar fact evidence that supports his allegations of systemic discrimination.
Delay
24The applicant's written submissions on the issue of delay were centered on the Tribunal's decision in Grange v. Toronto (City), 2014 HRTO 633. In Grange, the Tribunal denied the respondents' request to dismiss the application for delay on the basis that the applicant's claim was one of systemic discrimination and amounted to a series of incidents for the purposes of section 34(1)(b) of the Code. In coming to this decision, the Tribunal came to a number of conclusions regarding the interpretation of section 34(1) of the Code. The Tribunal concluded that applications asserting a series are presumptively in time and that there is "no compelling reason" to engage in a detailed assessment of whether the incidents in question are in fact part of a series, particularly in cases alleging systemic discrimination.
25The applicant submitted that he intended to show that he was subject to systemic discrimination and the applicant submitted that he should be permitted to establish the context of the incidents described in his Application. The applicant submitted that the evidence would establish a connection between all of the alleged incidents, namely Staff Sgt. Scanlan. The applicant submitted that Staff Sgt. Scanlan mistreated the applicant between 2000 and 2004 because of the applicant's new immigrant status. The applicant submitted that Staff Sgt. Scanlan wanted to harm his career and that witnesses will attest to this and to Staff Sgt. Scanlan's treatment of the applicant. The applicant submitted that Staff Sgt. Scanlan's involvement explains the manner in which his 911 call was handled. The applicant submitted that he believed Staff Sgt. Scanlan was involved in the suspicious circumstances surrounding the attempt to transfer him out of the Airport Division. The applicant submitted that Acting Sgt. Cade acted as a conduit to sabotage the applicant's career.
Respondent's submissions
Reasonable Prospect of Success
26In its Request for Summary Hearing, the respondent submitted that the Application described no evidence that would connect to the actions taken during the 911 call incident and the applicant's interactions with acting Sgt. Cade and acting Sgt. Farquharson with a Code ground. The respondent submitted that even accepting the applicant's allegations to be true there is no link between a prohibited ground of discrimination and the applicant's conflicts with Acting Sgt. Cade and Acting Sgt. Farquharson. Rather, the applicant identifies the source of the conflict with Acting Sgt. Cade as a report to the applicant filed several years before and indicated that Acting Sgt. Farquharson considered him a "rat" because of a complaint to a senior officer. Similarly, the respondent submitted that there was nothing in the applicant's allegations that could connect the 911 call incident to a Code ground. The respondent pointed to the transcript of the applicant's 911 call. The respondent submitted that the transcript gives no indication that the applicant is a police officer or of his ethnic origin. Further, the applicant makes no mention of a "home invasion" and states that a group of teenagers were causing mischief to property.
27The respondent made similar oral submissions. The respondent submitted that the applicant's allegations indicate interpersonal conflicts with Acting Sgt. Cade and Acting Sgt. Farquharson. The respondent submitted that dealing with interpersonal conflicts is not the Tribunal's mandate. The respondent submitted that the responding officer to the applicant's 911 call acted on the information given. The respondent submitted that the applicant alleges that his 911 call was poorly handled, but, even if so, there is no connection between the alleged incident and any Code ground. The respondent submitted that the applicant's submissions were very speculative about what he believes witnesses will say if the matter proceeds to hearing. The respondent submitted that a merits hearing is not a fishing expedition, but it appears that the applicant believes he will be able to use the hearing to gather information.
28In its written submissions the respondent submitted that the proposed evidence in Appendix "C." of the applicant's Reply does not amount to similar fact evidence and is not evidence of discrimination against the applicant. The respondent submitted that the issue at this point of the preceding is not whether the evidence is admissible but whether this proposed evidence amounts to evidence beyond the applicant's speculation that the respondent's actions violated the applicant's Code rights. The respondent submitted that the Tribunal should only consider allegations meeting the test for similar fact evidence for this purpose. The respondent submitted the allegation set out in Appendix "C" bear no resemblance to the applicant's allegations that are the subject of the respondents Request for Summary Hearing. By contrast, the respondent submitted that the claims in Appendix "C" relate to excessive monitoring and discipline, inconsistent application of workplace rules, failure to recognize accomplishments, failure to promote, and failure to provide workplace training opportunities. The respondent submitted that the proposed evidence is not sufficiently similar to the applicant's allegations to be similar fact evidence and should not be considered in determining whether the allegations in question have a reasonable prospect of success.
Delay
29In light of the applicant's heavy reliance on the Grange decision, the respondent filed lengthy and detailed written summations in which it argued that Grange was wrongly decided or, in the alternative, was distinguishable and should not be followed in this instance. The respondent submitted that prior to Grange the Tribunal's jurisprudence established that an allegation of systemic discrimination is not sufficient to establish a series of incidents. Where systemic discrimination was alleged, the Tribunal nonetheless reviewed the circumstances of the alleged incidents to determine whether they amounted to a series. The typical criteria applied are the similarity of the incidents, the nature of the Code complaint and whether there were substantial gaps in time between incidents.
30The respondent reviewed the Grange decision and submitted that in Grange the Tribunal made a number of pronouncements at odds with the Tribunals established jurisprudence on the issue of delay. The respondent submitted that as a statutory Tribunal, the Tribunal is not bound by previous Tribunal decisions and that the Grange decision should not be followed for several reasons.
31The respondent submitted that the decision in Grange failed to take into account the legislative mandate that human rights issues should be heard expeditiously, which was recognized in the Tribunal's previous decisions regarding delay and in the Statutory Powers Procedure Act at section 2. The respondent submitted that the Grange decision failed to take into account the Tribunal’s jurisprudence in which it recognized the inherent unfairness of requiring a respondent to address stale dated claims. Finally, the respondent submitted that the Grange decision did not follow the Tribunal's previous decisions requiring an applicant to exercise due diligence in bringing forward human rights claims.
32The respondent submitted that in any event the Grange decision should be limited to its own facts and is distinguishable from this case. The respondent submitted that the Tribunal should apply the Grange decision only in similar fact scenarios, i.e., where the nature of the allegations were similar and based on the same Code grounds, the alleged prejudice was speculative, due diligence would be difficult for the applicant because of the nature of the alleged discrimination, and where the applicant had no specialized training or knowledge of human rights. The respondent submitted that automatic application of Grange would allow applicants to avoid a preliminary review of timeliness by simply asserting systemic discrimination. The respondent submitted that this would undermine the balance the Tribunal has tried to achieve between the rights of applicants to bring claims and the unfairness to respondents in having to respond to historical allegations.
33The respondent submitted that, in any event, there are compelling reasons to consider the issue of timeliness on a preliminary basis in this case. The respondent submitted that the applicant's allegations in Grange mostly consisted of incidents related to allocation of work, value and evaluation of work, promotion and compensation. The respondent submitted that in this case, the incidents, described above, are disparate and do not relate to a pattern of work assignments, evaluations, access to resources or fairness and promotions that are usually associated with claims of systemic discrimination in employment. The respondent submitted that this disparity is a compelling reason for the Tribunal to review this Application for delay as a preliminary matter. The respondent submitted that in Grange the Tribunal noted that claims related to subtle and nuanced conduct may only be apparent over time. In this case, however, the applicant makes claims of clear anti-immigrant comments and comments about his nationality and disability. These claims cannot be described as subtle or nuanced and the applicant would not need time to identify them as discriminatory.
34The respondent submitted that, unlike in Grange, its claim of prejudice is not speculative. In that regard, the respondent noted that several of the officers implicated in the Application have retired and one has died. The respondent submitted that the applicant stated in the Application that he was urged to file an internal complaint by senior management, but did not. The respondent submitted that the applicant should not now be able to revive his complaint, when it could have been dealt with it in a timely manner had he exercised due diligence.
Reply
35In reply, the applicant submitted that, as noted in Grange, discrimination can be subtle and difficult to prove. The applicant submitted that the decision in Grange reflects an evolving legal framework that addresses the rigidity of previous case law and should be followed. The applicant submitted that the incidents described in his application were related, as Staff Sgt. Scanlan was the organizing factor. The applicant submitted that he wants to interview senior officers to get them to acknowledge Staff Sgt. Scanlan's xenophobia.
36The applicant submitted that the delay in filing the Application is explained by the fact that he tried to find alternative solutions through the respondent's processes. The applicant submitted that he wanted to avoid the harm that could be caused by a formal complaint and investigation. Accordingly, he reached out to his supervisors and inspectors to resolve the issues. The applicant stated that he did not pursue his concerns exactly as the respondent's policies required because he wanted to minimize the friction that would be caused by filing a report against a colleague, which he said proved his good faith.
Analysis and Decision
Delay
37Sections 34(1) and (2) of the Code read as follows:
(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.
38The applicant filed this Application on December 27, 2013. As described above, several of the incidents set out in the Application allegedly occurred more than one year before this date. The issue before me is whether these incidents form a series with the incidents alleged to have occurred within one year of the filing date and, if not, whether the delay was incurred in good faith and no substantial prejudice will result as a result of the delay.
39The Tribunal has considered the issue of what amounts to a series of incidents for the purposes of section 34(1)(b) of the Code on several occasions. In doing so, the Tribunal developed principles for evaluating whether incidents alleged to have occurred more than one year before an application is filed amount to a series of incidents. The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change 2010 HRTO 1621. Similarly, the Tribunal has found that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos v. Mississauga (City) 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board 2009 HRTO 1225 and Savage v. Toronto Transit Commission 2010 HRTO 1360. However, a temporal gap of more than a year is not always decisive in assessing whether incidents amount to a series. See, Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927 and Labao v. Toronto Police Services Board, 2012 HRTO 1529. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to 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?
40The Tribunal’s approach to delay and the issue of what amounts to “good faith” for the purposes of section 34(2) is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires 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. This is a mandatory provision, subject only to section 34(2). The mandatory one-year 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.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
41Without necessarily disagreeing with the result in Grange, I do not agree that anything in the statutory wording of section 34(1) creates a presumption that an application is in time, as stated at paragraph 35 of Grange. In paragraph 35 of Grange, the Tribunal notes that pursuant to section 34(1) an applicant need only believe that his or her Code rights have been violated to file an application. That is undoubtedly correct, but the incidents of alleged discrimination must nonetheless come within the time limits set out in section 34(1)(a) or (b). In my view, the word "believes" in section 34(1) reflects the fact that when an application is filed it necessarily consists of allegations that, until proven, are no more than the applicant's beliefs.
42At paragraph 24 of Grange, the Tribunal also stated that an applicant relying on section 34(1)(b) should not face a higher burden than an applicant relying on section 34(1)(a) with respect to timeliness. In my view there is no difference in the burden on an applicant under either section. In either case, an applicant must meet the requirements of the respective section. The requirements of the sections are, however, entirely different. Under section 34(1)(a), it is a simple matter of determining if the incidents in question are alleged to have occurred within a year of the date on which the application was filed. Under section 34(1)(b), the Tribunal must undertake a far more complex analysis to determine if the incidents in question amount to a series. As noted above, this analysis is multi-faceted and includes consideration of whether the incidents in question share a sufficient factual, legal and temporal connection to be considered a series. Simply put, an applicant relying on section 34(1)(b) has more to prove than an applicant relying on section 34(1)(a). Treating applicants differently who are in different situations is not inappropriate and does not in my view impose an inappropriate burden on applicants who rely on section 34(1)(b). Whether an application meets the requirements of sections 34(1)(a) or (b) requires analysis of the particular circumstances of each case and cannot in my view be presumed.
43As noted in Miller, section 34(1) is a mandatory or jurisdictional provision, i.e., one that determines what the Tribunal has, or does not have, the power to decide. Pursuant to section 34(1)(a), the Tribunal may deal with applications filed within one year of the alleged incident or incidents and pursuant to section 34(1)(b) the Tribunal may deal with applications filed within one year of the last incident of a series of incidents. The Tribunal may deal with an application not meeting the requirements of sections 34(1)(a) and 34(1)(b) only if the applicant provides a good faith explanation for the delay and the delay will not cause substantial prejudice, pursuant to section 34(2). In other words, section 34(2) is the exception to the temporal definition of the Tribunal's jurisdiction. Consequently, I differ with the statement at paragraph 37 of Grange in which the Tribunal states that the application of section 34(2) is a jurisdictional issue and the application of section 34(1)(b) (and implicitly section 34(1)(a)) is not. In my view it is the converse.
44In Grange, the Tribunal states that under sections 34(1)(a) or (b) the Tribunal does not require applicants to apply for a decision permitting them to proceed with their applications. That is true, but it is also true of the many other jurisdictional issues that can arise in an application. The Tribunal is, however, vigilant about jurisdictional issues and reviews all applications for potential jurisdictional concerns, including with respect to timeliness. Where it does not appear that an application is within the Tribunal’s jurisdiction, the Tribunal will issue the Notice of Intent to Dismiss requiring an applicant to explain how the matter is within the Tribunal's power to decide, before a respondent is served with the application and required to file a response. In my view, this vigilance is warranted because it is not appropriate for the Tribunal to deal with or to require respondents to defend allegations that are outside the Tribunal's jurisdiction. This in my view is a compelling reason to determine whether an application meets the requirements of sections 34(1). In my view, the timeliness of an application should be determined at the earliest possible stage of a proceeding.
45Having said that, it will not always be possible to determine whether alleged incidents of discrimination amount to a series of incidents for the purpose of section 34(1)(b) as a preliminary matter. It is well-established that discrimination can be subtle, nuanced and difficult to prove. As noted at paragraph 30 of Grange, findings of discrimination are most often based on circumstantial evidence. See also Phipps v. Toronto Police Services Board, 2009 HRTO 877. In cases where a series is alleged, the issue of whether the allegations amount to series will sometimes be interwoven with and essentially indistinguishable from the merits of the allegations in question. In such cases, the issue with respect to section 34(1)(b) will often be whether the incidents in question amount to incidents of discrimination, which is essentially the same issue the Tribunal must determine in assessing the merits of an application and requires consideration of the same evidence. In such circumstances, it may be appropriate to proceed to a merits hearing (subject, for example, to questions of whether the allegations have a reasonable prospect of success). Where the Tribunal can assess whether an applicant's allegations, on their face, amount to a series of incidents without duplicating merits evidence, it should. In making this assessment the Tribunal should be guided by what is fair, just and expeditious in the circumstances.
46In my view, the assessment of whether the applicant's allegations in this Application amount to a series of incidents can be performed without evidence. Although the applicant submitted that his claims were of systemic discrimination, the narrative of his Application and subsequent submissions do not support that assertion. In Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370, the Tribunal reviewed the jurisprudence considering the definition of “systemic discrimination” and stated that “Systemic claims are about the operation and impact of polices, practices and systems over time, often a long period of time. They will necessarily involve an examination of the interrelationships between actions (or inaction), attitudes and established organizational structures” (at paragraph 33).
47The narrative in this Application describes several incidents that were disagreeable to the applicant, including difficult interactions with several other police officers. On the face of the Application, there is no apparent connection between these incidents and there are significant temporal gaps between several of them. In his Reply and submissions, the applicant submitted that Staff Sgt. Scanlan is the unifying actor in these incidents. The applicant submitted that, in addition to Staff Sgt. Scanlan’s explicitly discriminatory acts in 2003-04, he believed that Staff Sgt. Scanlan was responsible for the minimal investigation of his 911 call in January 2007 and the attempts to transfer him from the Airport Division against his wishes in 2008 and 2009. The acts of a particular individual arising out of his own discriminatory biases do not amount to systemic discrimination. The applicant submitted that his interaction with Acting Sgt. Cade resulted from Staff Sgt. Scanlan's discriminatory influence, which is arguably an allegation of systemic discrimination.
48The applicant did not, in his submissions, attribute the differential treatment he allegedly experienced at the Airport Division to Staff Sgt. Scanlan. Similarly, other than the bare assertion, the applicant pleaded no facts and made no submissions connecting the actions of Sgt. Rocha or Acting Sgt. Farquharson to the influence of Staff Sgt. Scanlan, who retired about 10 months before the first alleged incident involving Sgt. Rocha and over a year before the first alleged incident with Acting Sgt. Farquharson. In Keith v. College of Physicians of Ontario, 2010 HRTO 2310 and in AlSaigh v. University of Ottawa, 2012 HRTO 2, the Tribunal held that the bare assertion of systemic discrimination does not create a nexus between separate incidents. In my view, this case is distinguishable from cases such as Grange, Midwives and Ontario Public Service Employees Union v. Liquor Control Board of Ontario, 2015 HRTO 766, where in each case the applicants presented coherent and particularized theories of their cases that, although disputed, could reasonably be viewed as allegations of systemic discrimination amounting to a series of incidents. The circumstances of this case are in my view similar to Patterson v. Toronto District School Board, 2014 HRTO 635 where the Tribunal found that the allegations regarding the actions of particular individuals did not amount to systemic discrimination. In these circumstances, I find that there is no nexus between the allegations regarding Staff Sgt. Scanlan, the 911 call, the transfer issues at Airport Division, of differential treatment at the Airport Division and the interaction with Acting Sgt. Cade to the incidents alleged to have occurred within one year of the filing of the Application. Consequently, I find that these incidents do not form part of a series of incidents for the purposes of section 34(1)(b) of the Code.
Good Faith
49The Tribunal has stated on a number of occasions that pursuing other avenues of redress before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that he had no reason to make inquiries about his rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14, and Thomas v. Toronto Transit Commission, 2009 HRTO 1582. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. In this case, the applicant submitted that he attempted to address his concerns with the police service in a more informal manner in order to minimize the repercussions for all involved. The applicant clearly found the behaviour in question objectionable and he did not suggest that he was ignorant of his Code rights. While the applicant’s reasons for not filing an Application sooner are understandable, they do not amount to a good faith explanation for the delay. In the absence of a good faith explanation, it is unnecessary to consider the issue of prejudice. Consequently, the allegations regarding Staff Sgt. Scanlan, the 911 call, the transfer issues at Airport Division, of differential treatment at Airport Division, and the interaction with Action Sgt. Cade are dismissed for delay.
50Several of the allegations regarding Sgt. Rocha are alleged to have occurred more than one year before the filing date of the Application. The earliest of these incidents allegedly occurred on September 17, 2012, which is within a few months of incidents involving Sgt. Rocha that are alleged to have occurred within one year of the date on which the Application was filed. The allegations all relate to incidents in which Sgt. Rocha is said to have made inappropriate comments about the punctuality and attendance and treated the applicant differently regarding early departures from work. These incidents are of a similar character and in my view amount to a series of incidents under section 34(1)(b) of the Code.
No Reasonable Prospect of Success
51Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
52In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:
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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
53The Tribunal held as follows in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5:
An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.
54The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.
55At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.
56Having dismissed the allegations regarding the 911 call and those regarding Acting Sgt. Cade for delay, it is unnecessary to determine whether these allegations have no reasonable prospect of success. The remaining allegations to be considered in the context of the summary hearing are those directed at Acting Sgt. Farquharson. As noted above, the Application contains several timely allegations that Acting Sgt. Farquharson treated the applicant poorly, openly displayed little regard for the applicant, excluded the applicant from social events and declined to assist the applicant at an accident scene, contrary to usual practices. These allegations, assuming them to be true, indicate that Acting Sgt. Farquharson dislikes the applicant, but not necessarily that this animus is connected to the Code ground. Similarly, I do not agree that the fact that Acting Sgt. Farquharson declined mediation with the applicant or expressed a concern that the applicant may commence a lawsuit is evidence of a connection to a Code ground. Appendix “C” to the Reply, Constable. Caicas’ complaint, makes no reference to Acting Sgt. Farquharson, or, in fact, to any of the individuals the applicant alleges violated his Code rights in this Application. Constable Caicas’s allegations are also factually distinct from the applicant’s. Consequently, Appendix “C” to the Reply does not in my view amount to evidence that connects Acting Sgt. Farquharson’s alleged actions to a prohibited ground of discrimination.
57However, during the summary hearing, the applicant submitted that he had spoken to a number of witnesses who observed Acting Sgt. Farquharson make comments indicating a bias with respect to place of origin. This evidence could connect to the applicant's allegations of animus and differential treatment by Acting Sgt. Farquharson, which, again, are assumed to be true for the summary hearing, to the prohibited ground of discrimination of place of origin. In these circumstances, I cannot find the allegations regarding Acting Sgt. Farquharson have no reasonable prospect of success. I appreciate that the respondent has an alternative explanation regarding these allegations and this finding does not imply that the allegations have merit. Rather it simply means that a merits hearing will be required to make a determination.
Order
58The Tribunal orders as follows:
The Tribunal shall continue to deal with the allegations against Sgt. Rocha and Acting Sgt. Farquharson; and,
The remaining allegations are dismissed for delay.
Next Steps
59The Registrar shall schedule the matter for a two day hearing.
Dated at Toronto, this 20th day of April, 2016.
“Signed By”
Douglas Sanderson
Vice-chair